Practicing Law in Oregon

Practicing Law in Oregon
***PLEASE NOTE: State and federal practice

in Oregon may have changed since the
original date of this seminar. Please check the
local court rules and the District of Oregon
rules for the most recent updates.***
Friday, June 21, 2013

9 a.m.–4:30 p.m.
Oregon State Bar Center

Tigard, Oregon
4.5 General CLE or Practical Skills credits

and 2 Ethics credits
PRACTICING LAW IN OREGON
The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither
the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials
and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification
of these materials.
Copyright © 2013
OREGON STATE BAR

16037 SW Upper Boones Ferry Road
P.O. Box 231935
Tigard, OR 97281-1935
Practicing Law in Oregon ii

TABLE OF CONTENTS
1. Oregon Pleadings and Parties: Tips to Avoid Hearing “You’re Not from Around These
Parts, Are You?” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–i
— John R. Bachofner, Bullivant Houser Bailey PC, Vancouver, Washington
2. Oregon Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–i

— Leslie S. Johnson, Kent & Johnson LLP, Portland, Oregon
— Charles J. Paternoster, Parsons Farnell & Grein LLP, Portland, Oregon
3. Deposition Techniques and Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–i

— David B. Markowitz, Markowitz Herbold Glade & Mehlhaf PC, Portland, Oregon
4. Local Practice in the District of Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–i

— C. Marie Eckert, Miller Nash LLP, Portland, Oregon
— Maya P. Waldron, Miller Nash LLP, Portland, Oregon
5. Oregon’s Judicial Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–i

— The Honorable David V. Brewer, Oregon Supreme Court, Salem, Oregon
6. The Discipline Process: How It Works and How to Avoid It . . . . . . . . . . . . . . . . . . 6–i

— Linn D. Davis, Assistant Disciplinary Counsel, Disciplinary Counsel’s Office, Oregon
State Bar, Tigard, Oregon
— John S. Gleason, Disciplinary Counsel and Director of Regulatory Services, Oregon State
Bar, Tigard, Oregon
— Helen M. Hierschbiel, General Counsel, Oregon State Bar, Tigard, Oregon
— Troy J. Wood, Assistant General Counsel, Client Assistance Office, Oregon State Bar,
Tigard, Oregon
Practicing Law in Oregon iii

Practicing Law in Oregon iv
SCHEDULE
8:00 Registration
9:00 Oregon Pleadings and Parties: Tips and Traps for the Unwary
F How Oregon pleadings are different
F Ultimate facts and defenses that must be asserted
F Practicalities of practice
Nena Cook, Sussman Shank LLP, Portland
9:45 Oregon Discovery—Rules and Conventions

F Usual timing and the practice for getting adjustments
F Distinguishing federal and state practice in Oregon
F Pursuing records of parties and nonparties
F Local discovery for foreign actions
F Court assistance in disputes
Leslie S. Johnson, Kent & Johnson LLP, Portland
Charles J. Paternoster, Parsons Farnell & Grein LLP, Portland
10:30 Break
10:45 Deposition Techniques and Strategies

F Oregon’s written and unwritten rules governing depositions
F Defending your client’s deposition
F How to ask questions
F Asking the “Big Questions”
David B. Markowitz, Markowitz Herbold Glade & Mehlhaf PC, Portland
Noon Lunch
1:00 Local Practice in the U.S. District Court for the District of Oregon
F The importance of civility and professionalism
F Considerations during initial case filing
F Discovery disputes (minimize them)
F Summary judgment practice
F Trial practice
C. Marie Eckert, Miller Nash LLP, Portland
1:30 May It Please the Court—An Overview of the Oregon Court System
The Honorable David V. Brewer, Oregon Supreme Court, Salem
2:15 Break
Practicing Law in Oregon v
SCHEDULE (Continued)
2:30 The Discipline Process: How It Works and How to Avoid It

F How it all works
F Client Assistance Office overview
F Disciplinary Counsel’s Office overview
F Roundtable discussion, including common issues, recent decision, and examples
Moderator: Helen M. Hierschbiel, General Counsel, Oregon State Bar, Tigard
Linn D. Davis, Disciplinary Counsel’s Office, Oregon State Bar, Tigard
John S. Gleason, Director of Regulatory Services, Oregon State Bar, Tigard
Troy J. Wood, Client Assistance Office, Oregon State Bar, Tigard
4:30 Adjourn
Practicing Law in Oregon vi

FACULTY
The Honorable David V. Brewer, Oregon Supreme Court, Salem. Judge Brewer was elected to the Supreme
Court in May 2012 and joined the Court in January 2013. He sat on the Oregon Court of Appeals from
1999 through 2012 and as Chief Judge from November 1, 2004 to March 31, 2012. He previously served
as a circuit judge for the Lane County Circuit Court, where he presided over many civil and criminal
trials and settled many more cases through the court’s settlement conference program. Judge Brewer
is a past president of the Lane County Bar Association, past member of the Lane County Domestic
Violence Council, and a past member of the State Council on Court Procedures. He has served on many
Oregon State Bar committees and task forces, including the Practice and Procedure Committee and the
Indigent Defense Task Force. He is a member of the Oregon State Bar Legal Services Task Force.
Nena Cook, Sussman Shank LLP, Portland. Ms. Cook is a trial attorney with over 20 years of experience
specializing in complex business disputes, appellate law, and professional liability defense. She is a
member of the American Bar Association, American Constitution Society for Law and Policy, Campaign
for Equal Justice Advisory Board, Federal Bar Association, and Oregon Women Lawyers Foundation
Board. She also is a member of the Oregon State Bar Litigation, Labor and Employment, and Business
Litigation sections and the Washington State Bar Association Litigation and Labor and Employment
sections. Ms. Cook serves as a Multnomah County Pro Tem Judge, is admitted to practice before the
United States Supreme Court, and served as the 2005 Oregon State Bar President. She is a frequent
speaker and writer on the topics of professionalism, ethics, and employment law.
Linn D. Davis, Disciplinary Counsel’s Office, Oregon State Bar, Tigard. Mr. Davis is an assistant disciplinary
counsel for the Oregon State Bar, where he investigates complaints of ethical misconduct made against
attorneys licensed to practice in Oregon. He formerly served twelve years as a prosecutor in the New
York County District Attorney’s Office.
C. Marie Eckert, Miller Nash LLP, Portland. Ms. Eckert is an experienced business litigator with particular
expertise in financial institutions litigation, creditors’ rights matters, and trusts and estate litigation.
She practiced at Perkins Coie from 1988 to 1994 and then at U.S. Bancorp until early 2002, as litigation
manager and senior corporate counsel in charge of litigation for the western region. Ms. Eckert has
handled a wide range of complex commercial litigation in state and federal courts, including contract
and business valuation disputes, business torts, lender liability claims, regulatory enforcement actions,
insurance coverage actions, and employment, trusts and estates, and environmental litigation.
John S. Gleason, Director of Regulatory Services, Oregon State Bar, Tigard. Mr. Gleason is Disciplinary
Counsel and Director of Regulatory Services for the Oregon State Bar. As Director of Regulatory
Services, he supervises the admission and regulation of Oregon lawyers. Mr. Gleason retired from the
Colorado Supreme Court offices in 2013 after 24 years. In Colorado he served as Regulation Counsel for
the Colorado Supreme Court, where he directed an office of the Court responsible for the regulation of
Colorado attorneys and magistrates, lawyer admissions, and the prosecution of unauthorized practice
of law matters. Mr. Gleason is active locally and nationally with the National Organization of Bar
Counsel, the National Organization of Judicial Counsel, and the American Bar Association, and he is
past president of the National Client Protection Organization. Mr. Gleason is a Fellow of the American
Bar Foundation and a Fellow of the Colorado Bar Foundation. He also serves as a member of state
consultation teams appointed by the American Bar Association’s Center for Professional Responsibility.
In May 2013 Mr. Gleason received the American Bar Association Michael Franck Award, and in February
2013 the National Organization of Bar Counsel honored him with the President’s Award for service to
the legal profession.
Practicing Law in Oregon vii
FACULTY (Continued)
Helen M. Hierschbiel, General Counsel, Oregon State Bar, Tigard. Ms. Hierschbiel is General Counsel
of the Oregon State Bar, where, among other things, she gives ethics guidance to lawyers. She joined
the Oregon State Bar in December 2003 in the Client Assistance Office, reviewing and investigating
complaints against lawyers. While at the bar, she has written numerous article and given dozens of
presentations regarding lawyers’ ethical obligations. Prior to joining the Oregon State Bar, she worked in
private practice in Portland and for DNA–People’s Legal Services on the Navajo and Hopi reservations
in Arizona.
Leslie S. Johnson, Kent & Johnson LLP, Portland. Ms. Johnson practices in the areas of business litigation
and business law. She has a broad range of experience in traditional business settings and law offices—
including more than ten years as a paralegal before law school—and with complex business and
business litigation issues. Her law practice has extended to nearly all types of business disputes, with
emphasis on the areas of corporate governance, insurance coverage, shareholder agreements and
disputes, employment law, business and real property transactions, franchise disputes, and lawyer
and accountant malpractice. She is an occasional speaker at local and state bar association CLE events
on practical litigation skills, and she has coauthored chapters of the Oregon State Bar publications
Insurance, Federal Civil Litigation, and Civil Pleading and Practice. Ms. Johnson is admitted to practice in
Oregon and Washington.
David B. Markowitz, Markowitz Herbold Glade & Mehlhaf PC, Portland. Mr. Markowitz is a frequent lecturer
on litigation-related topics for the Oregon State Bar, the Oregon Law Institute, and the Multnomah
Bar Association. He regularly presents a nationally recognized training seminar on depositions. Mr.
Markowitz is a Fellow of the American College of Trial Lawyers and a member of the American Board
of Trial Advocates. Mr. Markowitz frequently acts as a mediator and arbitrator to resolve commercial
disputes, and he served as a pro tem judge in Multnomah County for several years.
Charles J. Paternoster, Parsons Farnell & Grein LLP, Portland. Mr. Paternoster has built his practice inside
of the courtroom, representing a diverse group of clients in complex commercial and employment
cases. In his employment law practice, he defends employers against claims of discrimination and
retaliation and advises both individuals and businesses on issues ranging from the enforceability
of noncompetition agreements to the protection of trade secrets. He also has significant experience
handling cases involving governmental audits and defending professionals against complaints brought
by administrative agencies. Mr. Paternoster is a member of the Oregon State Bar Disciplinary Panel and
a Multnomah County Court Annexed Arbitration Program Certified Arbitrator. He is a regular author
and speaker on trial practice and employment law.
Troy J. Wood, Client Assistance Office, Oregon State Bar, Tigard. Mr. Wood joined the Oregon State Bar staff
in February 2013, after several years in private practice. Mr. Wood’s practice involved a variety of legal
issues, including litigation, personal injury, general corporate issues, and business transactions. He has
also owned and operated nonlegal businesses that included a mergers and acquisitions consulting firm
and a family business managing a multi-million dollar golf concessionaire operation.
Practicing Law in Oregon viii

Chapter 1
Oregon Pleadings and Parties: Tips
to Avoid Hearing “You’re Not from
Around These Parts, Are You?”
John R. Bachofner1
Bullivant Houser Bailey PC
Vancouver, Washington
Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1
II. Differences—The Oregon Plaintiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1
A. One Form of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1
B. Code Pleading Versus Notice Pleading . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1
C. Standards for Pleadings and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . 1–2
D. Prerequisites for Certain Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–6
E. Choosing the Correct Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–7
F. Choosing Where to File . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–8
G. Commencing the Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–9
III. Differences—The Oregon Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–9
A. General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1–10
B. Motions to Consider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–11
C. Defenses that Must be Raised or Waived . . . . . . . . . . . . . . . . . . . . . . . . . .1–11
D. Filing the Answer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1–11
E. Counterclaims, Cross-Claims, and Third-Party Claims . . . . . . . . . . . . . . . . . .1–13
IV. General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1–14
A. Amended and Supplemental Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . 1–14
B. Interpleader . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–15
C. Ethical Considerations—ORCP 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1–15
V. Final Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1–16
The author gratefully acknowledges the contributions of Keith S. Dubanevich and William A. Masters, who have
1
both written comprehensive reference materials that were invaluable to the preparation of this topic. With Keith’s approval,
Mr. Bachofner has modified and incorporated portions of his article here.
Authorities Shepardized by Nena Cook, Sussman Shank LLP, Portland, May 2013.
Chapter 1—Oregon Pleadings and Parties
Practicing Law in Oregon 1–ii

“I have been a stranger in a strange land.” —Moses, Bible, Exodus, 2:22

“Who’s ’im, Bill? A stranger! ’Eave ’arf a brick at ’im.” —Punch (London, 1854), vol. 26
“ ’Tis good to give a stranger a meal or a night’s lodging. ’Tis better to be hospitable
to his good meaning and thought, and give courage to a companion. We must be as
courteous to a man as we are to a picture, which we are willing to give the advantage of
a good light.” —Ralph Waldo Emerson, “Behavior,” The Conduct of Life (1860)
I. INTRODUCTION
We have all heard it at one time or another: “You’re not from around here, are you?” Your
heart drops into your stomach because you realize something you did tipped them off. What was it?
My clothing? My manner of speech? My powdered wig? I saw it done that way on Rumple and the
Bailey. . . .
These materials are intended to provide you with basic resources regarding Oregon’s state
court procedures for pleadings and parties. However, be forewarned: each county may also have local
practices—some written and some not—that can trip you up. In addition to consulting the Oregon Rules
of Civil Procedure (“ORCP”) and Uniform Trial Court Rules (“UTCR”), the wise lawyer will also check
the Supplemental Local Rules (“SLR”) for the county in which they plan to appear. With the advent of
the Internet, most rules can be accessed online free of charge through the Oregon Judicial Department
at http://www.ojd.state.or.us/Web/OJDPublications.nsf/Rules?OpenPage. While knowing the local
rules may not help with your physical appearance, you may at least avoid being “home-towned” by
the locals.
For a closer look at Oregon pleadings and parties, I recommend Chapter 7 of the Oregon State Bar
Civil Litigation publication. For an excellent comprehensive discussion of Oregon state civil procedure,
I also recommend Volume 1 of the Oregon State Bar publication, Civil Pleading and Practice. Both sets
of materials, as well as over 40 other substantive CLE publications, will become accessible online in
2007 through the BarBooks™ Online Subscription Program available through the Oregon State Bar.
BarBooks™ Online was created to increase access to justice by making CLE publications more readily
available to Oregon lawyers, regardless of their proximity to an Oregon law library.
II. DIFFERENCES—THE OREGON PLAINTIFF
While many states have adopted civil procedures that mirror those used by federal courts,
Oregon has a long history of carefully preserving its own method of doing things. One of the areas
where Oregon has withstood federalization is in its pleadings. The careful plaintiff will consider those
differences before preparing and filing his or her complaint in Oregon.
A. One Form of Action
ORCP 2 provides that there is only one form of action in Oregon, known as a civil action. Except
as specifically identified in the rules, statutes, or Constitution, procedural distinctions between actions
at law and suits in equity have been abolished in Oregon.
B. Code Pleading Versus Notice Pleading
Oregon state courts require “code” or fact pleading that must contain a plain and concise
statement of “ultimate facts” constituting a claim for relief without unnecessary repetition. ORCP 18A.
As a result, claims or defenses must state ultimate facts to support the elements of each particular claim
or defense. Davis v. Tyee Industries, Inc., 295 Or 467, 476, 668 P2d 1186 (1983). With Oregon’s system,
mechanisms are in place to frame, narrow, or broaden the ultimate facts alleged and to narrow the issues
for discovery and trial. See ORCP 21D and E. It is the allegations contained in the pleadings that are
used to measure relevance of particular evidence at trial. Thus, in the absence of amendment, evidence
outside the scope of the issues pleaded may be excluded through the doctrine of variance. Compare Smith
Practicing Law in Oregon 1–1
v. Fred Meyer, Inc., 70 Or App 30, 687 P2d 1128 (1984). Furthermore, in some Oregon courts, judges have
been known to read the pleadings directly to the jury, though a more common practice is to summarize
them.
By contrast, federal and other courts require “notice” pleading, which merely includes a short
and plain statement showing that a pleader is entitled to relief. FRCP 8(a)(a). Since federal pleadings
are designed to place a party on “notice” of a particular claim or defense, they can consist of a general
summary of the position stated. Any further narrowing is more typically achieved through discovery
and other procedural mechanisms.
The careful pleading of ultimate facts requires more than a simple detailed recitation of facts,
lest the complaint be attacked for containing overly broad and unnecessary information. Conversely, it
also requires more than mere notice of the claims being alleged. Thus, there is a certain element of art
to a properly alleged complaint that walks the fine line between both ends of the spectrum. During two
recent sessions of the Oregon House of Delegates (“HOD”), a small contingent of delegates proposed
the adoption of checklist-type forms for pleading of many common actions, similar to those used in
some California courts. In both sessions, the HOD has refused to approve the use of such checklist
forms, thereby preserving the art of pleading for at least the indefinite future.
C. Standards for Pleadings and Documents
1. Pleadings Allowed. ORCP 13 provides that the pleadings are the written statements by
the parties of the facts constituting their respective claims and defenses. The only permissible pleadings
include the complaint, answer, third-party complaint, and reply. An answer may also include a
counterclaim against a plaintiff or a cross-claim against a defendant. Answers are necessary in response
to cross-claims and third-party complaints. Replies are necessary to respond to counterclaims and to
assert an affirmative defense to defenses asserted in an answer. ORCP 13B. Demurrers and pleas are not
used. ORCP 13C.
2. Substantive Requirements. ORCP 16 contains several substantive requirements for
pleadings filed in Oregon state court. The complaint must have a caption containing the title of the action,
the name of the court, the case number, and a pleading designation in accordance with ORCP 13B. In
the complaint, the title must include the names of all the parties. However, subsequent pleadings may
abbreviate the title by stating the name of the first party on each side, “with an appropriate indication
of other parties.” ORCP 16A. The case number, which is assigned when the complaint is filed, should
be placed on all pleadings.
The pleading must consist of plain and concise statements in paragraphs that are consecutively
numbered in Arabic numerals (i.e., 1, 2, 3, etc.). The contents of each paragraph, where possible, should
be limited to stating a single set of circumstances. A paragraph number may then be referred to by
number in all subsequent pleadings and may be adopted by reference in a different part of the same
pleading. ORCP 16B and D.
Each separate claim or defense must be separately stated. Alternative theories of recovery are
allowed as separate counts under the same claim. Even when a party is in doubt as to which of two
factual statements is true, they may be pleaded in the alternative, so long as they can be verified in
good faith as being consistent with ORCP 17, discussed below. ORCP 16C. Any pleading that contains a
claim for relief shall state the ultimate facts constituting that claim, without unnecessary repetition, and
must include a demand for the relief called the prayer. The prayer for relief is the request for the relief
to which plaintiff thinks it is entitled. The purpose of the prayer is to advise defendant of the precise
nature of the demand, in order that the party may be prepared to meet it. Kerschner v. Smith, 121 Or
469, 473, 236 P 272 (1925), 121 Or 469, 256 P 195 (1927). The prayer is not part of the claim, although it
may explain or qualify other parts of the pleading. Finch v. Miller, 271 Or 271, 275, 531 P2d 892 (1975);
Green v. Cox, 44 Or App 183, 186, 605 P2d 1198 (1980). If recovery of money or damages is sought, the
amount thereof must be stated. ORCP 18. However, the amount of a claim for noneconomic damages
apparently does not need to be specifically stated, inconsistent with the rule. McKenzie v. Pacific Health
& Life Ins. Co., 118 Or App 377, 382, 847 P2d 879 (1993).
Pleadings are to be liberally construed, so as to disregard any error or defect that does not affect
the substantive rights of the adverse party. ORCP 12. Stringer v. Car Data Systems, Inc., 314 Or 576, 841
P2d 1183 (1992). Nevertheless, it is far better to strive for excellence in one’s pleadings, so as not to
telegraph to the judge an impression of sloppiness or inexperience.
3. Technical Requirements. UTCR 2.010 contains detailed instructions for compliance with
the technical requirements for pleadings in Oregon. Because we will only briefly summarize some of
the requirements, we recommend that both the lawyer and legal assistant familiarize themselves with
the specific provisions. Failure to comply with the requirements could result in a court clerk rejecting a
pleading and returning it the lawyer as unfiled or its being stricken. UTCR 1.090. Such a result would be
disastrous if the pleading was filed on the last day of a statute of limitations (“SOL”) or other deadline.
a. Title or Caption. The title, or caption, is treated as a formal matter. Its purpose is to
identify the parties with the claim and the court. State ex rel. Brookfield Co. v. Mart, 135 Or 603, 609, 283
P 23, 295 P 459 (1931). The caption should indicate the type of claim, such as “personal injury,” “breach
of contract,””injunctive relief,” etc. UTCR 2.010(11)(b).
The caption of the pleading should also contain a statement of whether it is subject to mandatory
arbitration.
b. Size and Appearance. Except where designated by the court, all pleadings must be
printed or typed on 8.5×11-inch paper that contains numbered lines on the left side. The use of backing
sheets is discouraged, while recycled paper is allowable and encouraged. No font is specified, though
Times New Roman, Arial, or Courier are common. Blanks in preprinted forms may be completed in
handwriting, as may notations by the trial court administrator or a judge. Printing should be on one
side only, double-spaced, and with two to four inches left blank at the top of the first page. Subsequent
pages must have a one-inch margin. The name of the document and page number, expressed in
Arabic numerals, must appear at the bottom left side of each page, and the attorney or firm name and
information, including facsimile and email, must also appear within the document, frequently in the
bottom right margin. Exhibits must be marked as such at the bottom right side with an Arabic numeral
identifying the exhibit, as well as its page number. UTCR 2.010(2)–(10).
c. Subscription and Verification. Pleadings must be signed by at least one attorney of
record who is an active member of the Oregon State Bar or, if a party is not represented by an attorney,
by the party. ORCP 17A. The name of the party or attorney signing any pleading or motion must be
typed or printed immediately below the signature, and the signatures must be dated. UTCR 2.010(6).
While verifications of pleadings have generally been eliminated, there are some unique exceptions for
specific statutory claims. The wise practitioner will consult the Oregon Revised Statutes for the type of
claim being asserted.
d. Paragraphs. Claims and defenses must be made in paragraphs that are numbered
consecutively in the center of the page with Arabic numerals and lowercase letters for any subparagraphs.
4. Special Pleading Rules. Oregon law provides numerous special pleading rules, some of
which may be intuitive and some not. Likewise, some are matters of substance, and some procedural.
The following is a brief summary of the highlights.
a. Conditions Precedent. In pleading the performance or occurrence of all conditions
precedent, it is sufficient to generally allege that all conditions precedent have been performed or
occurred. A denial of such occurrence, however, must be made specifically and with particularity,
forcing the adverse party to establish the proof of such performance at trial. ORCP 20A.
b. Designation of Type of Claim. Although UTCR 2.010(11) requires the pleader to designate
the type of claim, failure to correctly designate it may not be fatal. Windle v. Flinn, 196 Or 654, 664, 251
P2d 136 (1952); Laird v. Frick, 142 Or 639, 644, 18 P2d 1029 (1933).
c. Presumptions. Facts presumed by law need not be alleged. For example, it is unnecessary
to allege that a contract within the statute of frauds is in writing when the making of the contract is
alleged. See, e.g., Ingerslev v. Goodman, 116 Or 210, 216, 240 P 877 (1925); Smith v. Jackson, 97 Or 479, 482,
192 P 412 (1920). Similarly, where a corporation is a plaintiff, it is not necessary to allege the corporate
existence or that the corporation has the capacity to sue; both are presumed. Rossman, Plain and Concise
Language, 6 Or L Rev 293, 297 (1927). Presumptions can be a powerful ally in trial and are frequently
overlooked. An extensive list of evidentiary presumptions is contained in ORS 40.135, Oregon Evidence
Code (“OEC”) 311.
d. Judicial Notice. Facts judicially noticed need not be alleged. Peters v. McKay, 195 Or 412,
421, 238 P2d 225 (1951), reh’g denied 195 Or 412, 246 P2d 585 (1952); Cameron v. Goree, 182 Or 581, 599, 189
P2d 596 (1948) (courts take judicial notice of facts that form part of the common knowledge of people
who possess average intelligence). However, the careful lawyer will allege facts over which there may
be any doubt. Some examples of facts that may be judicially noticed include corporate existence of
cities and counties, the existence of ordinances, comprehensive plans, or enactment, incorporation of
a city or county, or a private right derived by statute where the title and date of passage are alleged.
ORCP 20D; ORCP 20C.
e. Matters of Record/Written Instruments. Oregon allows a party to allege something
involving a document in one of three ways. They may: (i) summarize the material parts of the document
in the body of the pleading; (ii) copy the material parts of the document into the pleading; or (iii) attach
a copy of the document to the pleading as an exhibit and incorporate it by reference in the allegations.
Vaughan v. Spence, 170 Or 440, 448–49, 133 P2d 242 (1943).
Oregon has “consistently adhered” to the above method of pleading. Vaughan, supra, 170 Or at
449. However, an exhibit cannot supply ultimate facts to establish a claim; those allegations must still
be made in the complaint. Where a written instrument is relied upon as the foundation of a claim and
it is set forth in full in the complaint or incorporated by reference, the written instrument prevails over
the pleading for its purported legal effect. Kelley v. Mallory, 202 Or 690, 697, 277 P2d 767 (1954).
f. Compliance with the Statute of Limitations. It is not usually necessary for the plaintiff
to allege facts showing compliance with any applicable SOL. Nevertheless, specific facts showing why
the SOL is tolled or avoided must be pleaded if it would otherwise appear that the SOL had run. Hewitt
v. Thomas, 210 Or 273, 276, 310 P2d 313 (1957); Huycke v. Latourette, 215 Or 173, 176, 332 P2d 606 (1958).
In cases where the statute begins to run upon discovery, discovery must be pleaded. Frohs v. Greene, 253
Or 1, 7, 452 P2d 564 (1969).
g. Judgment or Other Determination of Court or Officer. In pleading a judgment or other
determination of a court or officer with special jurisdiction, it is not necessary to state the facts conferring
jurisdiction, but such judgment or determination may be stated to have been duly given or made. If
such allegation is controverted, the party pleading is bound to establish at trial the facts conferring
jurisdiction. ORCP 20B.
h. Agency. Oregon does not require specific pleading of agency where a known agent
executes a contract on behalf of the agent’s principal. It is sufficient to plead execution of the contract
by the principal, allowing proof to be introduced at trial that the agent executed the contract. Masters v.
Walker, 89 Or 526, 530, 174 P 1164 (1918). Similarly, ratification of a contract does not have to be alleged.
Scandinavian-American Bank v. Wentworth Lumber Co., 101 Or 151, 157, 199 P 624 (1921). Alleging that a
principal executed the contract permits proof of execution of an agreement by an unauthorized agent
and subsequent ratification by the principal. Phillips v. Colfax Co., 195 Or 285, 292, 243 P2d 276, reh’g
denied 195 Or 285, 245 P2d 898 (1952); Levy v. Nevada-California-Oregon Ry., 81 Or 673, 675, 160 P 808
(1916). See also Downs v. National Share Corp., 152 Or 546, 552, 55 P2d 27 (1936), regarding alternative
methods for alleging agency. Likewise, agency need not be pleaded in a tort action against a corporation,
as an allegation that the corporation committed the tort is proper. Scibor v. Oregon-Washington R. & Nav.
Co., 70 Or 116, 120, 140 P 629 (1914).
i. Libel, Slander, and Fraud, Oh My! In an action for libel or slander, it is not necessary
to allege extrinsic facts to show application to the plaintiff. It is sufficient to say that the same was
spoken or published about the plaintiff. If controverted, the plaintiff must establish at trial that it was
published or spoken. ORCP 20E.
Certain causes of action, such as fraud must be alleged with greater particularity. The elements
of actionable fraud consist of: (i) a representation; (ii) its falsity; (iii) its materiality; (iv) the speaker’s
knowledge of its falsity of ignorance of its truth; (v) his intent that it should be acted on by the person
and in the manner reasonably contemplated; (vi) the hearer’s ignorance of its falsity; (vii) his reliance
on its truth; (viii) his right to rely thereon; and (ix) his consequent and proximate injury. To state a good
cause of action, it is necessary that each and every one of the essential elements of fraud be alleged. Musgrave
v. Lucas, 193 Or 401, 410, 238 P2d 780 (1951).
j. Time and Place. Only material aspects of time and place are necessary. When matters of
quality and quantity are unimportant to a case, they do not need to be alleged as material facts. Within
the bounds of ORCP 17, it is sufficient to allege that a certain event occurred “on or about” a certain
date when the exact date is unknown.
k. Statutory Duty of Damages. Where a case rests on a statutory duty imposed on a class
of persons, the complaint must contain facts bringing the defendant within the statutory class. State
Forester v. Obrist, 237 Or 63, 390 P2d 333 (1964). Violation of a statutory duty may be alleged in general
terms without pleading the exact language of the statute. Moe v. Alsop, 189 Or 59, 66, 216 P2d 686 (1950),
overruled in part in other grounds, Bay Creek Lumber & Mfg. Co. v. Cesla, 213 Or 316, 320, 322 P2d 925, reh’g
denied 213 Or 316, 324 P2d 244 (1958). Where aggravated damages are claimed under a statute, the
statute should be recited in the complaint or the claim should be stated as being made under the terms
of the statute. Springer v. Jenkins, 47 Or 502, 507, 84 P 479 (1906).
l. Punitive Damages. Oregon has special requirements for the pleading and recovery
of punitive damages contained in ORS 31.725 et seq. Plaintiffs may not include a claim for punitive
damages in their initial complaint. ORS 30.725(1) and (2). Instead, at any time after the pleading is
filed, a party may move the court to allow amendment of the pleading in order to assert a claim for
punitive damages. Both the moving and nonmoving parties may submit affidavits and documentation
supporting or opposing a punitive damages claim. ORS 30.725(2).
Upon receipt of a motion to amend to add punitive damages, the court will conduct a hearing to
determine if there are specific facts, supported by admissible evidence, to allow the punitive damages
claim. The court decides the motion based upon a directed-verdict standard. ORS 30.725(3).
The party seeking punitive damages must prove “by clear and convincing evidence” that the
party against whom punitive damages are sought “has acted with malice or has shown a reckless
and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious
indifference to the health, safety and welfare of others.” ORS 30.730(1). The court must issue its decision
on the motion to amend a pleading to assert a claim for punitive damages within ten days after the
hearing. If the court does not issue a decision within ten days, the motion is deemed denied. ORS
30.725(5). Discovery of evidence of a defendant’s ability to pay is not allowed unless and until a motion
to amend is allowed. ORS 30.725(6).
The distribution of a punitive damages award may affect whether it is worth alleging. The
Department of Justice Criminal Injuries Compensation Account receives 60% of the award, while the
prevailing party receives only 40%, no more than 20% of which may be paid to the prevailing party’s
attorney. ORS 30.735. Specific notification and payment procedures apply, not the least of which is a
requirement that the prevailing party provide notice in writing of the judgment to the Department
of Justice Crime Victims’ Assistance Section in Salem, Oregon, within five days after the entry of the
verdict or judgment. ORS 30.735(3).
m. Information and Belief. If a party is without knowledge or information sufficient to form
a belief as to the truth of an allegation, the party may allege so, which will have the same effect as a
denial. ORCP 19A.
n. Recitals and Negative Pregnants. No allegation in a pleading is held insufficient merely
because it is pled by way of a recital rather than alleged directly. Likewise, no denial is treated as an
admission because it contains a negative pregnant. ORCP 20G. Nevertheless, allegations by way of
recital rather than direct allegations are not encouraged. The most common example of a recital is an
allegation introduced by a “whereas” or an allegation introduced with “by reasons of.” See Graham v.
Corvallis & Eastern R. Co., 71 Or 477, 142 P 774 (1914).
o. Fictitious Parties and Unknown Persons. When you do not know the name of an opposing
party, it may be designated by any name, with the pleadings amended to substitute the true name once
it is known. ORCP 20H. However, a pleading should explain why an unknown “John Doe” party
cannot be specifically identified. When heirs of a deceased are unknown, they may be designated as
“unknown heirs.” ORCP 20I. See also ORCP 20J regarding unknown persons when trying to determine
an adverse claim, estate, lien, or interest in property. Be wary when the SOL is close, as notice must be
received by the proper party.
D. Prerequisites for Certain Claims
A thorough discussion of statutes of limitations and service requirements is beyond the scope
of this presentation. Nevertheless, close attention should be paid to the SOL applicable to the type of
claims and relief requested. Although based on the same transaction or occurrence, different claims or
theories may be subject to different statutes of limitation. A lawyer’s characterization of the claim does
not necessarily determine which SOL will apply. Securities-Intermountain, Inc. v. Sunset Fuel Co., 289 Or
243, 611 P2d 1158 (1980).
More importantly, certain types of claims may contain additional demand or notice requirements.
A few examples are included herein.
1. Oregon Tort Claims. No action may be maintained arising out of any act or omission of a
public body or its agents unless notice of the claim is given as required by ORS 30.275. When a person
injured is a minor, incompetent, or otherwise unable to give the notice, the deadline for the notice is
tolled up to a maximum of only 90 days. Otherwise, notice must be given within 180 days after the alleged
loss or injury, or within one year if the claim is for wrongful death.
2. Insurance Policies—Proof of Claim. Most insurance policies require notice from the
insured of any loss or claim in order to activate the insurer’s responsibilities under the policy. See ORS
742.061 (proof of claim required to start claim for attorney fees); American Star Ins. Co. v. Allstate Ins. Co.,
12 Or App 553, 558, 508 P2d 244 (1973) (notice over 2.5 years after the accident did not satisfy notice
requirement).
3. Conversion. In order to state a claim for conversion in certain circumstances, the party
claiming rightful ownership must demand the return of the property and have been refused. See Daniels
v. Foster & Kleiser, 95 Or 502, 507, 187 P 627 (1920).
4. Shareholder’s Derivative Action. In most cases, a shareholder may not pursue an action
on behalf of the corporation unless the corporate officers and directors have refused to take the action
in response to the shareholder’s demand. See Browning v. C & C Plywood Corp., 248 Or 574, 434 P2d 339
(1967).
5. Attorney Fees. Certain claims for personal injury under ORS 20.080, and breach of contract
under ORS 20.082, where the prayer is for less than $5,500 may substantively qualify for recovery of
attorney fees, but only where a demand is sent to the defendant at least 10 days before filing the action.
E. Choosing the Correct Parties
1. Capacity
a. Governmental Units. The United States, the State of Oregon, municipal corporations,
counties, and certain specified public agencies, commissions, boards, departments, and corporations
may commence proceedings in Oregon courts.
b. Corporations. Foreign corporations may sue in Oregon, but where a foreign corporation
is “transacting business” in Oregon and has not obtained a certificate of authority, it cannot maintain
an action. ORS 60.704(1). However, even where a foreign corporation has not obtained the necessary
certification, it can still be sued. ORS 60.704(5).
Where a corporation is dissolved, it still may have an action prosecuted in its corporate name;
a dissolved domestic corporation may be sued on a cause of action arising prior to dissolution if the
action is commenced within five years. ORS 60.644(2)(c). Whether a dissolved foreign corporation is
subject to suit depends upon the laws of its domicile.
c. Partnerships and Unincorporated Associations. A limited partnership may sue or be
sued as an entity. Any partnership or unincorporated association may sue in any name that it has
assumed and be sued by any name that it has assumed or by which it is known. ORCP 26B.
d. Minors and Incapacitated Persons. ORCP 27 places restrictions on when a party who is a
minor or incapacitated may appear. Minors who are a party to an action must appear by a conservator
or guardian. If they do not have one, the court will, under some conditions, appoint one. ORCP 27A.
Incapacitated persons must also appear by or through a conservator or guardian. If they do not have
one, the court will, under some conditions, appoint one. ORCP 27B.
2. Permissive Joinder. ORCP 28 provides the conditions under which parties may be joined
in an action. All persons may join as plaintiffs in an action if they assert any right to relief jointly,
severally or in the alternative in respect to or arising out of the same transaction or occurrence and if a
common question of fact or law will arise in the action. A party need not be interested in obtaining or
defending against all the relief demanded. ORCP 28A. Separate trials may also be sought where justice
so requires. ORCP 28B. Judgment may be entered for one or more of the parties according to their
respective rights to relief or to their liabilities. ORCP 28A.
3. Compulsory Joinder. ORCP 29 applies to compulsory joinder. When a party is needed
for just adjudication and is subject to service of process, it is to be joined if feasible under the standards
identified in ORCP 29A. When a necessary party cannot be made a party, the court must determine
whether the action can equitably continue or should be dismissed under the standards identified in
ORCP 29B.
A person who is subject to service must be joined as a party if: (a) in that person’s absence,
complete relief cannot be accorded among those already parties; or (b) that person claims an interest
relating to the subject of the action and is so situated that the disposition in the person’s absence may:
(i) as a practical matter, impair or impede the person’s ability to protect that interest; or (ii) leave any
of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of their claimed interest. ORCP 29A. Where a necessary party has
not been joined and can be joined, the court shall order that the person be made a party. Where the
person should join the action as a plaintiff but refuses to do so, that person must be made a defendant,
the reason being stated in the complaint.
4. Misjoinder or Nonjoinder of Parties. ORCP 30 provides that parties may be dropped or
added by order of the court on motion of any party or on the court’s own initiative at any stage of the
proceeding and on such terms as are just. The rule further provides that any claim may be severed and
proceeded with separately. Misjoinder of parties is not grounds for dismissal of an action.
5. Substitution of Parties. ORCP 34 provides the procedure for substitution of parties,
whether resulting from death, disability, or some other issue relating to a party. Substitution will allow
the action to proceed with the substitute party. The rules provide that an action may be continued upon
death of a plaintiff, if the claim survives, by substituting the personal representative or successor in
interest upon motion to the court within one year. ORCP 34D. On motion, the court may also substitute
a guardian, conservator, or successor in interest within one year after disability of a party. ORCP 34C.
Additional time and procedural limitations apply to other substitutions.
6. Real Party in Interest. ORCP 26A requires that every action be prosecuted in the name
of the real party in interest. The real party in interest is the person or entity that has the right to enforce
the claim. The rule is designed to protect the defendant from being harassed later for the same claim for
relief. Verret v. Leagjeld, 263 Or 112, 501 P2d 780 (1972). Certain persons and entities, such as executors,
administrators, bailees, or trustees, may sue in another party’s name without that other party being
joined. ORCP 26A. Insurers frequently are allowed to sue in the name of their insured through use of a
loan receipt that maintains the insured’s interest in the matter. Failure to join a real party in interest will
not result in immediate dismissal of the action. Instead, the real party in interest is given a reasonable
time to ratify, join, or substitute into the action. ORCP 26A.
F. Choosing Where to File
1. State Versus Federal Court. While this presentation is focused on state court procedures,
the wise lawyer will not overlook whether to file his or her action in federal court if all other things
are equal. Obviously, some actions involving federal questions may only be maintained in federal
court. Conversely, some actions, due to the amount in controversy or the absence of diversity, must be
pursued in state court. When either court would have jurisdiction, considerations should be given to a
number of factors that could have a dramatic effect on the ultimate result.
a. Federal Court Pros. Federal court is typically a much better forum when the case involves
more complex issues of law or issues that would require scientific, technical, or specialized knowledge.
Locally, the facilities are more modern, and there are law clerks available to assist a federal judge
with any complex legal issues. “Lay down” discovery, identification of expert witnesses, and other
innovations have virtually eliminated “trial by ambush.” Jurors tend to be more conservative.
b. Federal Court Cons. Some practitioners complain that federal court interferes with
lawyers “trying their cases.” Rules and procedures control most aspects of a case, including disclosures,
pretrial conferences, scheduling orders, and evidence. While those procedures can force parties to look
at their case more quickly, they also tend to significantly increase litigation costs.
c. State Court Pros. State court is less expensive, and there tends to be more flexibility in
how cases are prepared and tried. Depending on the county, some courts virtually leave the parties
alone until just before trial. Some cases are subject to nonbinding arbitration. Jurors may be more or
less liberal, depending on the venue. A fast-track system strives for cases to go to trial within 12 months
from filing. No disclosure or deposition of expert witnesses; no interrogatories.
d. State Court Cons. Judges tend to have less time to spend on a particular matter. Recent
budgetary restrictions can impede availability of judges for trial of civil matters. Some cases are subject
to nonbinding arbitration. Some counties will not set over trial dates due to fast track rule. No disclosure
of or deposition of experts. Decisions somewhat less predictable depending on sympathy of case.
2. Venue. Once the decision is made to file in state court, a plaintiff must then determine
the appropriate venue. If a contract is involved, the choice may already have been specified in the
document. Depending on the type of case, venue may exist in several different counties. See ORS 14.030
et seq.. With many exceptions, venue generally exists in the county where the cause of action arose or
at least one of the defendants resides. Corporations are typically deemed to be a resident of any county
where they conduct regular, sustained business.
If a choice is available, consideration should then be given to strategic factors such as distance
for the client and lawyers, local customs and procedures, and the relative nature of typical jurors in
each county.
G. Commencing the Action
ORCP 3 provides that, “other than for purposes of statutes of limitations,” an action is commenced
by filing a complaint with the clerk of the court.
1. Commencement Within the SOL. ORS 12.010 and 12.020 generally regulate
commencement for the purposes of determining whether an action was commenced before expiration
of a particular SOL. For those purposes, commencement does not occur until the complaint is filed and
the summons and complaint are served on a particular defendant.
2. Relation Back. Oregon subscribes to a unique “relation back” system for determining
commencement that allows for additional time to serve a defendant. Pursuant to ORS 12.020(2), if the
complaint is filed within the time allowed by the applicable SOL, service of the summons and complaint
within 60 days of the filing date allows the service to “relate back” to the date of filing. Thus, the action
is deemed to have been commenced on the date of filing. Beware: The relation back only applies within
60 days of the filing date, not the SOL. Many attorneys have filed well before the SOL expired but failed
to serve within 60 days thereafter and before the SOL expired. As a result, the action was not deemed
commenced.
3. Time. Except as governed by ORS 174.120, ORCP 10 provides important information on
how time periods are calculated in Oregon. Specifically, the date of the act, event, or default from which
the period of time begins to run is not included, but the last day is included unless it falls on a Saturday,
Sunday, or legal holiday. In that event, the time period runs until the next day that is not a Saturday,
Sunday, or legal holiday. See also ORS 187.010 and 187.020 for a list of legal holidays.
When the period of time prescribed or allowed is less than seven days, then intermediate
Saturdays, Sundays, and legal holidays are not included in the computation of time. When the time is
more than seven says, all days within the period are counted. ORCP 10A.
Except with regard to service of summons, additional time may be allowed when a party is
served with documents by mail. If the party served is required to do some act within a prescribed
period after service of a notice or other paper on that party, then three days are added to the response
period when service is made by mail. ORCP 10C.
III. DIFFERENCES—THE OREGON DEFENDANT
Many of the rules and procedures discussed with regard to the Oregon plaintiff also apply to
the Oregon defendant. To avoid undue repetition, only the differences are highlighted. An answer or
responsive pleading is due with 30 days after service of the summons. If service is by publication, then
the answer or responsive pleading is due within 30 days from the date of first publication. ORCP 7C.
A. General Considerations
1. Tender of Defense. The process of tendering the defense of a matter is a procedure
through which a party gives notice of a pending action to another party from whom indemnity may be
sought. The party tendering the defense typically demands defense of, or participation in, the action.
Tenders of defense are based upon principles of collateral estoppel and the law of indemnity.
Where a claim is covered under an indemnity agreement, or the allegations of the complaint,
without amendment, state a claim within the terms of the indemnity agreement, the indemnitor has
a duty to defend the indemnitee. St. Paul Fire & Marine Ins. Co. v. Crossetti Bros., Inc., 256 Or 576, 475
P2d 69 (1970). The tender of defense may be based upon express indemnity agreements, such as
insurance policies, contracts, and warranties, or through implied indemnity, such as that arising out of
a relationship between the parties.
Before tendering the defense of the matter, thought should be given to several strategic
considerations, specifically:
a. Is indemnitor able to respond to a judgment?
b. What is the caliber of the defense that the indemnitor would provide?
c. Is the indemnitor obliged to defend all claims or just some of the claims asserted?
d. Would acceptance of the defense with reservation of rights as to ultimate responsibility
for a judgment be acceptable?
The tender of defense must be given within a “reasonable time.” Notice immediately before trial
is generally not sufficient.
2. Extensions of Time. Local custom and practice is to grant defendants an extension of time
upon request. Where defense counsel has insufficient time to prepare an appropriate response to a claim,
it is common practice to ask opposing counsel for an extension of time in which to appear or respond.
Professional courtesy dictates that a reasonable extension be given whenever possible. However, any
agreement concerning the extension of time to respond to a claim should be memorialized in writing.
Where the SOL is expired, or rapidly approaching, it is also common practice for a plaintiff to request
confirmation that there are no service or SOL defenses that will be raised. In that manner, it is less likely
that a plaintiff will be prejudiced by the extension.
Most lawyers will automatically write to plaintiff’s counsel informing them of their representation
of a particular defendant, stating that they intend to appear and requesting that they be given at least
10 days’ notice of any intent to apply for default. Doing so requires that defense counsel receive notice
before a motion for default is filed.
3. Removal to Federal Court. Immediately upon receipt of the complaint, counsel should
determine whether the case is removable to federal court pursuant to 28 USC §1441(a) (diversity of
citizenship) or 28 USC §1441(b) (federal question). Petition for removal of a civil action must be filed
within 30 days after the defendant receives a copy of the initial pleading or a service of summons. 28
USC §1446(b).
There are a number of procedural “snafus” associated with removal, and considerable care
should be taken in analyzing these issues, particularly in multiple-party cases. For example, a removal
petition filed 29 days after the moving defendant was served but 42 days after the first defendant was
served was held not to be timely filed. See Balestrieri v. Bell Asbestos Mines, Ltd., 544 F Supp 528 (ED Pa
1982).
Moreover, where a jury trial is requested before removal, or if the procedure of the court in which
the case was originally filed does not require express demand for jury trial (like Oregon), demand is not
required after removal unless specifically directed by the court. Otherwise, the petitioner has 10 days
after filing the petition for removal in which to demand a jury trial; a nonpetitioner has 10 days after
being served with notice of removal. FRCP 81(c).
B. Motions to Consider
Generally, motions against a complaint must be filed within the time allowed for a party to
appear and defend under ORCP 7C. If a motion is filed, it may not file its answer until the issues raised
in the motion are resolved. ORCP 21A.
Several motions are available under ORCP 21, including motions to dismiss a particular claim
or the entire complaint for various reasons, motions to strike sham, frivolous, or irrelevant pleadings,
motions to strike a complaint containing more than one claim not separately stated, or motions to make
the allegations more definite and certain.
In the past, a great deal of money was spent by lawyers filing and responding to Rule 21
motions. A wise defendant will carefully consider whether it is strategically better to file motions to
clean up a complaint or to simply allow the allegations to stand as pleaded. In addition to the economic
considerations, filing such motions frequently serve to educate the plaintiff and improve its claims.
Many experienced litigators feel that the use of pretrial motions only educates the opponent as to the
opponent’s weaknesses. Others take the “first door out” approach and are of the view that the use of
pretrial motions encourages settlements and the early disposition of cases. The expense associated with
pretrial motion practice should be discussed with the client, and the ultimate decision should be that of
the client.
C. Defenses that Must be Raised or Waived
Certain defenses may be raised either by motion or by answer. ORCP 21G(1) provides that
defenses of lack of jurisdiction over a person, another action pending, insufficiency of summons or
process, or insufficiency of service are waived if not included in an ORCP motion or a responsive
pleading. No amendment is allowed to raise those defenses.
ORCP 21G(2) provides that other defenses may be raised by amendment if leave of court is
obtained and the party did not know, and could not have reasonably known, that the defense existed.
Those defenses include legal capacity to sue, real party in interest, and that the action was not commenced
within the time allowed by statute.
Under ORCP 21G(3), defenses for failure to state ultimate facts constituting a claim, failure to
join an indispensable party, or an objection of failure to state a legal defense to a claim may be made
in a pleading permitted under ORCP 13B, in a motion for judgment on the pleadings, or at trial on the
merits. However, the wise practitioner will not wait until that time to pursue such a motion. Finally, a
defense that the court lacks jurisdiction over the subject matter may be made at any time.
D. Filing the Answer
1. Admissions. ORCP 19A requires a defendant to admit or deny the allegations upon
which the adverse party relies. Where a defendant admits a fact in the answer, that admission relieves
the plaintiff from proving that allegation at trial. Owen v. Bradley, 231 Or 94, 100, 371 P2d 966 (1962).
However, an admission may be waived where the case is tried as if the admitted fact were still at issue.
ORCP 23B. An admission in the pleadings of one defendant is not admissible against a codefendant,
especially when the interests of the defendants are adverse to one another. Hyatt v. Johnson, 204 Or 469,
477, 284 P2d 358 (1955).
2. Denials. ORCP 19A also requires a party to state in short and plain terms the party’s
defenses to each claim asserted. If a party lacks sufficient knowledge or information sufficient to form
a belief as to the truth of the matter alleged, then it must so state, and doing so will have the effect of
a denial. Denials must fairly meet the substance of the allegations denied. The pleader must admit as
much of an allegation as is true and deny the remainder. Thus, an entire allegation may not be denied
simply because part of it is not true. That portion that is true must be admitted. ORCP 19A.
A general denial is permissible only when the pleader intends in good faith to controvert every
allegation of the pleading. Allegations to which a response is required, other than the amount of
damages, are deemed admitted if not denied. If no responsive pleading is required, the allegations will
be treated as denied or avoided. ORCP 19C. Other issues sometimes arise as to certain types of denials,
as follows.
a. The Negative Pregnant. A denial that does not completely respond to an allegation and
therefore implies that the allegation may be partly true is known as a “negative pregnant.” ORCP
20G provides that no denial shall be treated as an admission on the ground that it contains a negative
pregnant.
b. Evasive Denial. A denial must “fairly” meet the substance of the allegations denied. ORCP
19A. A refusal to admit or deny allegations may result in the allegations being admitted. ORCP 19C.
c. Argumentative Denial. An argumentative denial is an allegation by the responding party
that could not be true if the plaintiff’s allegations were true. Under the traditional rule, an argumentative
denial was regarded as not denying anything and therefore admitting the allegation in the plaintiff’s
complaint. See Loveland v. Warner, 103 Or 638, 204 P 622, reh’g denied 103 Or 638, 206 P 298 (1922) (the
insertion of a clause pretending to admit a fact not pleaded in the complaint is not proper, raises no
issue, is not capable of being denied, and should not be tolerated).
3. Defenses. All defenses must be stated separately. ORCP 16B. Alternative and inconsistent
defenses are permissible and often tactically wise, though it may also be more effective to decide on a
single defense before the time of trial. One should plead partial as well as complete defenses. Mitigation
of damages is an example of a partial defense that, to be relied upon, generally must be pleaded. Kirby
v. Snow, 252 Or 592, 595, 451 P2d 866 (1969). Partial defenses should be pleaded as such, or one risks
having them treated as a complete defense.
4. Affirmative Defenses. In responding to a preceding pleading, a party shall set forth any
matter constituting an avoidance or affirmative defense. ORCP 19B. Any fact that does not directly
controvert a fact necessary to be established by the claimant is a new matter and must be pleaded as an
affirmative defense. Hubbard v. Olsen-Roe Transfer Co., 110 Or 618, 626, 224 P 636 (1924). If doubt exists
as to the admissibility of evidence of any defensive matter under a denial, it is appropriate to set it forth
as an affirmative defense. However, the party asserting an affirmative defense will generally bear the
burden of proof on that issue.
Certain matters must be set forth affirmatively, including accord and satisfaction, arbitration
and award, assumption of risk, comparative or contributory negligence, duress, estoppel, failure
of consideration, fraud, illegality, laches, payment, release, res judicata, statute of frauds, statute of
limitation, unconstitutionality, and waiver. A nonexhaustive list of other affirmative defenses not listed
in the rules include mistake, adhesion, impossibility, incompetency, failure to mitigate, and setoff or
recoupment.
Ordinarily, the party alleging the defense must prove it. While the burden of proof shifts to
the plaintiff when a defendant raises a matter as an affirmative defense that could equally be proven
under a denial, a defendant cannot take advantage of that rule where it assumes the burden of proof
on an issue. Thus, when affirmatively controverting an issue that may be part of the plaintiff’s burden
of proof, the defendant should specifically deny that, by so pleading, it is admitting that it is assuming
the burden of proof. That position should be clearly stated in the pleading so that a trial or an appellate
court cannot cite reliance on the pleadings as a rationale for imposing the burden of proof on the
defendant.
a. Effect of Failure to Plead Affirmative Defense. Failure to plead an affirmative defense in
the first responsive pleading may result in a waiver, and the party failing to plead the defense may not
be permitted to introduce evidence in support of the defense. ORCP 23B.
b. Joinder of Affirmative Defense. A party is permitted to assert as many affirmative
defenses as it may have. ORCP 19B, 21A. If more than one affirmative defense is pleaded, each must be
set forth separately. ORCP 16B. Defenses may also be inconsistent. ORCP 16C. When one is in doubt
as to which of several statements of fact is true, statements may be alleged in the alternative. However,
inconsistent statements of fact within the pleader’s knowledge are improper. See ORCP 17C.
E. Counterclaims, Cross-Claims, and Third-Party Claims
1. Counterclaims. A counterclaim is a claim by the defendant against the plaintiff that is
asserted in the answer. ORCP 13B. A defendant may assert as many counterclaims, both legal and
equitable, that the defendant may have against the plaintiff. ORCP 22A(1). Oregon generally does
not require compulsory counterclaims. Burlington Northern Inc. v. Lester, 48 Or App 579, 583, 617 P2d
906 (1980). However, when a counterclaim is based upon facts common with any affirmative defenses
asserted by the defendant, or where only part of the counterclaim is asserted, the doctrine of res judicata
or collateral estoppel might preclude subsequent litigation in a separate proceeding. Thus, some
counterclaims may be compulsory even though Oregon’s counterclaim rule only mentions permissive
counterclaims.
2. Cross-Claims. When an action is against two or more defendants, any defendant may
allege in its answer a cross-claim against any other defendant. A cross-claim must: (a) arise out of the
transaction or occurrence that is the subject matter of the complaint; or (b) relate to any property that is
the subject matter of the original action. ORCP 22B(1). A cross-claim may include a claim for indemnity
or contribution. ORCP 22B(2).
Persons other than those made parties to the original action may be made parties to a counterclaim
or cross-claim in accordance with the joinder rules. ORCP 22D(1). The joinder rules should not be
confused with the rules allowing third-party complaints. Compare ORCP 22C. Oregon rules contain a
special joinder provision relating to counterclaims that is not found in the federal rules. ORCP 22D(2)
provides that a defendant in an action on a contract brought by an assignee may join all or any as
persons liable for attorney fees under ORS 20.097 (maker and plaintiff/assignee both liable to defendant
for attorney fees if the defendant prevails in contract action and contract provides for recovery of such
fees). The Oregon rules provide that a party joined under ORCP 22D is to be treated as a defendant for
purposes of service of summons and time to answer under ORCP 7. ORCP 22D(3).
3. Third-Party Complaint. After the commencement of an action, a defending party, as a
third-party plaintiff, may file and serve a complaint against a person not then a party to the action
as a third-party defendant, alleging that the person is or may be liable to the defending party for all
or part of the plaintiff’s claim against it. The third-party defendant, in turn, can then raise defenses,
counterclaims, or cross-claims just like any other party. ORCP 22C. Where a counterclaim is asserted
against a plaintiff, the plaintiff also may cause a third party to be brought into the action. ORCP 22C(2).
ORCP 22C(1) requires that a defending party, as a third-party plaintiff, must commence a
third-party action not later than 90 days after service of the plaintiff’s summons and complaint on the
defending party. Otherwise, it must obtain agreement of parties who have appeared and leave of court.
Although some circuit court judges have ruled that the court has the power to grant leave to file third-
party actions without regard to whether the other parties to the action agree, this appears to be contrary
to the express language of ORCP 22C(1). The careful lawyer will decide whether to file a third-party
claim as soon as possible after the complaint is served.
IV. GENERAL CONSIDERATIONS
A. Amended and Supplemental Pleadings
1. Amendment as a Matter of Course. ORCP 23A allows a party to amend its pleading once
as a matter of course at any time before a responsive pleading is served, or, if no response is permitted,
the amendment must be filed within 20 days after the pleading to be amended is served.
2. Amendment by Leave of Court Before Trial. Where a party cannot amend as a matter
of course, it must obtain leave of court or written consent of the adverse party before it can amend its
pleading. “[L]eave shall be freely given when justice so requires.” ORCP 23A. Review of a trial court’s
decision to deny leave to amend is for abuse of discretion. Quillen v. Roseburg Forest Products, Inc., 159
Or App 6, 10, 976 P2d 91 (1999). Thus, beware of last-minute motions to amend filed by the opposing
party. Note that some defenses ordinarily waived if not raised can be raised by amended pleading
under certain limited circumstances. ORCP 21G(2).
An order granting leave to amend should be obtained prior to filing and serving the amended
pleading. Once the order is entered, the pleading can be filed. The pleading should be filed and served
after the order is entered. A proposed pleading should be filed with a motion to amend. However, the
proposed pleading does not become an “official” pleading unless so ordered by the court.
3. Amendments After Motion. After a motion to dismiss, a motion to strike an entire
pleading, or a motion for judgment on the pleadings has been granted, the court may, upon such terms
as may be proper, allow a party to amend its pleading. ORCP 25A. Where a court orders that part of the
pleading be stricken or where the pleading, or a part of it, is to be made more definite and certain, the
pleading must be amended pursuant to ORCP 23D. See ORCP 25A.
4. Amendments After Commencement of Trial. Where issues not raised by the pleadings
are not objected to at trial, they will be treated in all respects as if they had been raised in the pleadings.
On motion of any party at any time, even after judgment, the pleadings may be amended to conform to
the evidence and to raise such issues. However, failure to amend does not affect the outcome of the trial
on those issues. If evidence is objected to as not being within the scope of the pleadings, the court may
allow the pleadings to be amended if the merits of the action will be advanced and the objecting party
cannot demonstrate prejudice. ORCP 23B. In some circumstances, a court may grant a continuance to
enable the objecting party to meet the new evidence. ORCP 23B.
5. Relation Back of Amendments. Whenever a claim or defense asserted in an amended
pleading arises out of the conduct, transactions, or occurrence set forth or attempted to be set forth in
the original pleading, the amendment relates back to the date of the original pleading. ORCP 23C.
An amendment changing the party against whom a claim is asserted relates back if the conditions
described above are satisfied and, within the statute of limitations, the new party: (1) had notice of the
action so it will not be prejudiced in its defense; and (2) knew, or should have known, that, but for a
mistake concerning the identity of the proper party, the action would have been brought against the
new party. ORCP 23C.
6. Procedure for Amendments. Under ORCP 23D, where a pleading is amended before
trial, a new “amended” pleading is filed, labeled as such. Occasionally, an amendment may be made by
deletions or interlineation in the original pleading. ORCP 23D. An amended pleading must be complete
in itself, without reference to the preceding pleading or amendments by the party. ORCP 23D. Once
an original pleading has been amended, the original pleading no longer is operative for the action.
Nevertheless, it may still serve as evidence or an admission. Whenever an amended pleading is filed, it
must be served on all parties who are not in default. A default judgment may be entered in accordance
with the original pleading served upon any party who is in default or against whom a default has
already been entered. However, the amended pleading need not be served on such parties in default
unless that pleading asks for additional relief against them. ORCP 23A.
7. Response to Amendments. Unless the court orders otherwise, a party must respond to
an amended pleading within the time remaining for response to the original pleading or within 10 days
after service of the amendment, whichever is longer. ORCP 15C.
B. Interpleader
ORCP 31A provides that persons having claims against the plaintiff may be joined as defendants
and be required to interplead when their claims are such that the plaintiff is or may be exposed to
multiple liability. A defendant exposed to similar liability may obtain such interpleader by way of a
cross-claim or counterclaim. It is not grounds for objection that the claims do not have a common origin
or that they are adverse to and independent of one another. It is also not grounds for objection that the
plaintiff alleges that it is not liable in whole or in part to any or all of the claimants.
ORCP 31B provides that any property or amount involved as to which the plaintiff admits
liability may, upon order of the court, be deposited with the court “or otherwise preserved, or secured
by bond in an amount sufficient to assure payment of the liability admitted.” Once that is done, the
court may enjoin all the parties before it from pursuing any other action regarding the subject matter of
the interpleader action. Following a hearing, the court may order the plaintiff discharged from liability
“as to the property deposited or secured” before determining the rights of the claimants.
Interpleader is often considered as a possibility when an insurer is faced with multiple claims
against an insured that exceed the amount of a liability policy. In theory, interpleading the policy limits
would allow the insurer to avoid incurring defense costs on the claims. However, in practice, doing so
without first obtaining a release for an insured could expose the insurer to allegations of bad faith in
leaving its insured unprotected.
C. Ethical Considerations—ORCP 17
In form, ORCP 17 is similar to its federal counterpart, FRCP 11. In practice, however, it is
infrequently necessary or imposed by Oregon judges. Fortunately, Oregon’s collegiality has avoided a
flood of Rule 17 sanction motions except when they are well-deserved.
1. Sanctions for Improper Pleading
a. Certification to the Court. ORCP 17 is somewhat similar to FRCP 11 in requiring certain
certifications to the court by signing pleadings, motions, and other papers. Sanctions are available for
violations of these rules. An attorney or party signing a pleading certifies that:
i. The statements are based upon reasonable knowledge, information, or belief, formed
after making reasonable inquiry under the circumstances;
ii. The pleading is not made for an improper purpose, such as delay or a needless increase
in the cost of litigation;
iii. The legal positions taken are “warranted by existing law or by a non-frivolous argument
for the extension, modification or reversal of existing law or the establishment of new law;” and
iv. The allegations or denials are supported by the evidence.
Any allegations or denials that the party or attorney does not wish to certify as supported by the
evidence must be “specifically identified.” The party or attorney’s signature constitutes a reasonable
belief that an allegation so identified will be supported by the evidence after further investigation and
a denial so identified is reasonably based upon a lack of information or belief. ORCP 17C.
ORCP 17(D) also provides that, in the event a pleading or motion is signed in violation of the
rule, the court may, upon motion or its own initiative, impose sanctions on the party or the attorney.
Sanctions under ORCP 17 are limited to amounts sufficient to reimburse the moving party for attorney
fees, including fees for bringing the motion. ORCP 17(D)(4). ORCP 17 sanctions may also include
amounts sufficient to deter future false certifications. ORCP 17(D)(4). However, sanctions sufficient
to deter future false certification must be based “upon clear and convincing evidence of wanton
misconduct.” ORCP 17(D)(4).
2. Asserting a Claim in Bad Faith. ORS 20.105 provides for an award of attorney fees for
disobeying a court order or other misconduct. The statute originally provided that the court had the
discretion to award reasonable attorney fees for willfully disobeying a court order or for acting “in bad
faith, wantonly or solely for oppressive reasons.” ORS 20.105 (1993). However, the 1995 Legislature
amended ORS 20.105, changing the award of attorney fees from discretionary to mandatory and
replacing the “bad faith” language with an “objectively reasonable” standard. See 1995 Oregon Laws
ch 618, sec 2 (SB 385).
As amended, ORS 20.105 requires a court to award reasonable attorney fees to a party against
whom a claim, defense, or ground for appeal or review is asserted, if that party is a prevailing party in
the proceeding and to be paid by the party asserting the claim, defense, or ground, upon a finding by
the court that the party willfully disobeyed a court order or that there was no objectively reasonable
basis for asserting the claim, defense, or ground for appeal.
These rules and statutes impose a definite moral and professional obligation upon the attorney.
An attorney should not rely solely on information provided by the client if the attorney can obtain or
verify the facts through other sources with reasonable diligence. Thus, whenever possible, an attorney
should investigate the merits of a client’s case before filing. If the attorney decides that an action lacks
merit, the attorney should advise the client promptly before filing. If the case has already been filed, the
attorney should get the client’s consent to dismiss or seek leave to withdraw. Counsel should always be
mindful of potential personal liability for improperly bringing or continuing an action.
V. FINAL THOUGHTS
In this author’s opinion, Oregon is a wonderful venue in which to practice law. Despite significant
growth in recent years, members of its bar remain, for the most part, collegial and professional.
Professional courtesies abound and are the norm rather than the exception. Thus, if you find yourself
pondering over the correct method for pleading a particular matter, more than one local lawyer will
usually be willing to provide you with some insight, if not an example from which to draw.
These materials were designed to help you learn some of the basic state rules regarding pleadings
and parties. With further study, it is my fervent hope that they will help you avoid being “home-
towned” by the locals.



Chapter 2
Oregon Discovery1
Leslie S. Johnson
Kent & Johnson LLP
Portland, Oregon
Charles J. Paternoster
Parsons Farnell & Grein LLP
Portland, Oregon
Contents
I. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1
B. Rules and Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1
C. Scope of Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–1
D. Planning and Balancing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–2
II. Discovery of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–2
A. Requests for Production or Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–2
B. Requests for Admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–2
C. Interrogatories (Federal Court Only) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–3
III. Discovery of Nonparties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–4
A. Subpoenas for Documents or Things . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–4
B. Interstate Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–4
C. Public Records Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–4
IV. Review of Major Distinctions Between Federal and State Court Practice . . . . . . . . . . . . 2–4
A. Initial Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–4
B. Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–4
C. Time Limits on the Conduct of Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . 2–5
D. Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–5
V. Getting Court Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–5
A. Requirement to Confer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–5
B. Protecting Confidential or Privileged Materials . . . . . . . . . . . . . . . . . . . . . . 2–5
C. Motions to Compel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–6
D. Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–6
Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–7
1
Thanks to Mitchell Baker, Fisher & Phillips LLP, for his work on these materials for the 2010 edition.
Chapter 2—Oregon Discovery

I. OVERVIEW
A. Introduction
1. Discovery as performance of the lawyer’s independent duty to investigate imposed by
Oregon’s Rules of Professional Conduct, FRCP 11 and ORCP 17.
2. Discovery is the use of specific procedural tools to obtain information bearing on the case.
B. Rules and Resources
1. State Court. Oregon Rules of Civil Procedure (ORCP), Uniform Trial Court Rules (UTCR),
and Supplementary Local Rules (SLR) of each county circuit court.
2. Federal Court. Federal Rules of Civil Procedure (FRCP), Local Rules (LR) for the District
of Oregon.
3. Oregon State Bar Publications. Federal Civil Litigation in Oregon, Civil Litigation Manual,
Civil Pleading and Practice (generally not cited).
4. Treatises. Wright & Miller, Federal Practice & Procedure, and Matthew Bender,
Moore’s Federal Practice (regularly cited to both state and federal courts).
C. Scope of Discovery
1. Scope extends to any matter, not privileged, that is relevant to the claim or defense of
any party. Material sought need not be admissible if reasonably calculated to lead to the discovery of
admissible evidence. FRCP 26(b)(1); ORCP 36 B(1).
2. Given the similarity between Oregon state rules and the federal rules, state courts will
accept federal decisions as guidance. Boon v. Boon, 100 Or App 354, 357 n.2 (1990) (father had standing
to quash subpoena served by mother on father’s psychologist); Vaughan v. Taylor, 79 Or App 359, rev
denied 301 Or 445 (1986) (subpoena as method to obtain discovery from nonparty); Southern Pacific
v. Bryson, 254 Or 478, 480 (1969) (early analysis of Oregon’s Rule 34 based on history of FRCP 43).
When rules are similar, decisions of other states courts also provide “context.” GPL Treatment Ltd. v.
Louisiana-Pacific Corp., 323 Or 116, 124 (1996) (using decisions of other states courts to analyze provision
of Uniform Commercial Code).
3. Attorney-client privilege is as defined by the evidence rules and common law. See Oregon
Evidence Code (“OEC”) 503 (ORS 40.225). In federal court, the federal common law of privilege takes
precedence except with respect to claims and defenses governed by state law. FRE 501. Oregon’s
rule may be somewhat distinguished by its lengthy definitions of “client” and “representative of the
client” to the extent that “representative” may include, without limitation, any principals, officers, and
directors of a corporate client.
4. The work product doctrine protects from disclosure materials prepared in anticipation of
litigation. The highest degree of protection is given to the “mental impressions” of litigation counsel,
but protection extends to work by a party or by a consultant/expert under the direction of the attorney
that falls within the “anticipation of litigation” label. See Hickman v. Taylor, 329 US 507 (1947) (seminal
discussion of “work product”). The reference to work product in the federal and state rules is identical.
See FRCP 26(b); ORCP 36 B(3). For discussions in Oregon common law, see, for example, State v. Riddle,
330 Or 471 (2000) (discussion of privilege and work product protection under Oregon cases as applied
to communications between expert and attorney); Brink v. Multnomah County, 224 Or 507 (1960) (same);
and United Pacific Ins. Co. v. Trachsel, 83 Or App 401, rev denied 303 Or 332 (1987) (court protected work
of fire expert hired after litigation appeared likely). Under state law, the work product extends to
both written materials and work product that has not been reduced to writing. Kirkpatrick, Oregon
Evidence at § 503.06[2] (2002).
D. Planning and Balancing

1. Do what you would do anywhere you practice.
2. Follow default response times or document agreements to the contrary!
3. The Golden Rule will not necessarily be enforced by the courts, but it still lives in Oregon.
II. DISCOVERY OF PARTIES
A. Requests for Production or Inspection
1. FRCP 34 and ORCP 43 are very nearly identical.
2. Requests can generally be served in conjunction with or after service of summons. See
FRCP 26(b); LR 26-1; ORCP 43 B.
3. Requests must be in writing, must describe material sought by item or by category and
with reasonable particularity, and must specify a reasonable time, place, and manner for production
and related acts. “Reasonably particular” is determined by the facts and circumstances of the case. See,
e.g., 8A Wright & Miller, Federal Practice and Procedure, § 2211 (1994).
4. Do not file requests for production or responses in either state or federal court unless and
until a request is in dispute.
5. The only reliable way to preserve objections is to make them in a written form, typically
by a formal captioned document matching each request to the objections it raises. The state rule does
not impose a particular requirement for a writing, but the practice is to follow the federal-rule format—
restating each request followed by appropriate objections. See LR 34-2.
6. The state rule does not impose a specific response time, except that a defendant cannot be
required to respond earlier than 45 days after service of summons unless the court specifies a shorter
term. By far, the dominant practice is to allow 30 days, absent some extraordinary need for urgency
imposed by the circumstances of the case.
7. Fed. R. Civ. P. 34(b) requires a written response within 30 days after the service of the
request.
8. The state rule provides that “[t]he party upon whom a request is served shall comply with
the request, unless the request is objected to with a statement of reasons for each objection before the
time specified in the request. . . .” ORCP 43 B; but see Citizens’ Utility Board v. Public Utility Commission,
128 Or App 650, 657–58, rev denied 320 Or 272 (1994) (“[W]e agree . . . that ORCP 43B does not require
the conclusion that [the responding party] waived the right to seek protection . . . by failing to seek
protection sooner.”). The local federal rule is clearer and stricter: failure to object within the time fixed
by the rules, or within the time the parties have agreed, constitutes a waiver of any objection. LR 26-5.
9. FRCP 26(e) imposes some duty to supplement responses. There is no counterpart in the
Oregon Rules.
B. Requests for Admission
1. Governed by FRCP 36 and ORCP 45.
2. Distinctions between federal and state rule.
a. In federal action, do not file requests or responses, though they may be used as exhibits
at trial. LR 36-1. In state court, requests and responses must be filed with court (by exclusion from
ORCP 9 D).
b. ORCP 45 F limits the number of requests to 30 without court order; federal rule imposes
no such limit.
c. ORCP 45 A mandates specific language in the request warning of the import of failure to
make a timely response.
d. In both federal and state practice, each matter on which an admission is requested must be
separately set forth. ORCP 45 E provides that the request must leave sufficient space for a response, and
it is customary to follow this same format in federal court, although there is no analogous provision.
3. Requests for admission can be useful, particularly in state court, to establish foundation
for likely trial exhibits. Such documents must be attached to the requests for admission unless they have
been or are otherwise furnished or made available for inspection and copying. FRCP 36(a); ORCP 45 A.
4. ORCP 45 B follows FRCP 36(a) in requiring that a written response be served within 30
days after service of the request unless the court shortens or extends the time. Failure to respond in a
timely fashion results in an automatic admission of the matters contained in the request.
5. Requirements for substantive responses are the same in state and federal court. The
answering party may admit, deny, or object to the request or may state that the matter is neither
admitted nor denied. The party is further required to qualify an admission or denial if good faith so
requires. In lieu of a response, a party may object to a requested admission, but objections based upon
ambiguous, unintelligible, or argumentative requests may be tested in court and are not favored.
6. If the court determines that an answer is insufficient, the court may impose money
sanction, or will order the party to amend its answer, or will order that the matter is deemed admitted.
See, e.g., Asea Inc. v. Southern Pacific Transportation, 669 F2d 1242 (9th Cir 1981) (matter deemed admitted).
7. Both federal and state rule provide that if a party fails to admit the genuineness of a
document or the truth of a matter, and the party making the request later establishes the genuineness
or truth of the matter, the court may order the offending party to pay for the reasonable expenses,
including attorney fees, of making that proof. See, e.g., Elliott v. Progressive Halcyon Ins. Co., 222 Or App
586 (2008) (attorney fees awarded).
8. The subject matter of admissions under FRCP 36 and ORCP 45 is conclusively established
for trial. A denial has been determined by the Oregon courts to have no evidentiary weight or effect. See
Bowers v. Winitzki, 83 Or App 169, 173 (1986).
C. Interrogatories (Federal Court Only)
1. Interrogatories are not authorized in the state courts of Oregon, but they are widely used
in federal court actions. They may be used to identify trial witnesses, including expert witnesses. FRCP
26(a)(2). In certain circumstances, the facts known to or opinions held by an expert who has been
retained but is not expected to testify may also be discovered. FRCP 26(b)(4)(B).
2. Interrogatories, answers, and objections are not filed with the court unless the court so
directs or they become the subject of a motion.
3. Local rule discourages lengthy boilerplate preambles and encourages conciseness and
clarity. Broad, general interrogatories are not permitted. An opposing party may not be asked to “state
all facts on which a contention is based” or to “apply law to facts.” See LR 33-1(c) and (d).
4. Answers and objections must be served within 30 days after service of the interrogatories.
Each question must be set forth in full before each answer or objection. Each objection must be followed
by a statement of reasons. The answers must be made under oath and must be signed by the person
giving the answers. Objections are to be signed by the attorney. FRCP 33(b); LR 33-2(a).
5. Interrogatories may be used as exhibits or evidence in support of a motion and, subject to
the rules of evidence, may be introduced at trial. LR 33-1(b). Answers to interrogatories frequently play
a key role in motions for summary judgment.
III. DISCOVERY OF NONPARTIES

A. Subpoenas for Documents or Things
1. In both federal and state actions, a subpoena is the method for obtaining discovery from
a nonparty. The subpoena can be used to compel a nonparty to attend a deposition and/or to produce
documents or tangible things. FRCP 45(a)(1)(C); ORCP 55 F(2) and (3).
2. Service by mail is effective if the target consents in advance, but effective service always
requires that the appropriate witness fee be delivered with the subpoena. ORCP 55 D(3).
3. For subpoenas seeking production of documents only (without attendance at a deposition),
the state rule requires that the civil subpoena be served on each party at least 7 days before the subpoena
is served on the target, and the target shall be given no less than 14 days to respond, in order to allow
time for preserving objections and obtaining court assistance, if appropriate. ORCP 55 D(1).
4. Both federal and state rule require notice to all parties of discovery subpoenas, usually
accomplished by service of a copy of the subpoena. Other parties are entitled to copies of production
obtained, just as they would be entitled to attend a deposition.
5. Note that state rule has special provisions for discovery of health information at
ORCP 55 H.
B. Interstate Discovery
1. Federal rule allows for service of a subpoena for documents or things within the district of
the court where the action is pending or outside the district but within 100 miles of the place designated
for production or inspection. FRCP 45(b). Other places of service may be authorized by motion and
court order.
2. Practice in state actions pending in Oregon depends on the requirement of the state in
which the discovery will occur. The state court will issue a commission or letters rogatory for discovery
from a nonresident upon a proper motion, supported by an affidavit substantiating the need for the
discovery. See ORCP 38 B and 55. Do not forget that state rule authorizes service of subpoenas by mail
so long as the target of service assents to service by that method. ORCP 55 D(3) and (4). Be sure to
confirm that agreement with the service.
C. Public Records Requests
1. For requests directed to state government agencies, see ORS 192.410–505.
2. Federal documents may be requested under the Federal Freedom of Information Act (5
USC §552), with reference to specific agency records and inspection provisions set forth in the CFRs
and agency guidelines.
IV. REVIEW OF MAJOR DISTINCTIONS BETWEEN FEDERAL AND STATE COURT PRACTICE
A. Initial Disclosures
While federal rule anticipates formal initial disclosures, the District of Oregon has a tradition of
waiving this requirement. LR 26-2 allows the parties to waive the disclosures, and there is a form on the
court’s website for documenting waiver.
There is no equivalent to initial disclosures for state actions.
B. Interrogatories
As noted earlier, this is an important tool in federal litigation that is not available in state actions.
C. Time Limits on the Conduct of Discovery

In Oregon state court, as a general rule, once discovery commences, the only time limit on
completing it is the reasonableness of the time left for a response. Local practice is evolving at the
county level—even among individual judges and, particularly, for more complex cases—to call for
work on a scheduling order. (Be sure to check each circuit court’s website for current practice regarding
scheduling orders, pretrial and trial judge assignments, and trial settings.)
By contrast, the rule in federal court is for formal scheduling orders with default deadlines
cutting off general discovery, a subsequent cut-off for a period of expert discovery, and staged pretrial
submissions. Discovery requests must be propounded in time for the response to be due before the
cutoff. These deadlines can only be changed by court order pursuant to motions.
D. Experts
Pretrial discovery of experts is allowed in federal actions only; none in state actions absent
agreement among the parties. (It happens!) Oregon courts have repeatedly prohibited discovery of
experts in the absence of such agreement. See Stevens v. Czerniak, 336 Or 392, 400–05 (2004); Nielson v.
Brown, 232 Or 426 (1962); Brink v. Multnomah County, 224 Or 507 (1960) (seminal discussions of work
product and expert discovery).
During the time set aside by the scheduling order, FRCP 26(a)(2) anticipates that the discovery
of experts will be initiated by an exchange of reports. The format of the report is determined by FRCP
26(b)(2). Exchanges of records and depositions usually, but not always, follow in a discovery period
specific set by the court’s scheduling order.
V. GETTING COURT ASSISTANCE
A. Requirement to Confer
The parties to a discovery dispute have an obligation to confer before filing discovery motions
in both state and federal courts. LR 7-1(a); UTCR 5.010(2)–(3). Motions will be rejected as a matter of
course unless the first paragraph is a certificate of compliance with those rules. Failure to perform the
duty may serve as a basis for outright denial of the motion, irrespective of its substantive merits.
B. Protecting Confidential or Privileged Materials
1. Material Confidential but Not Privileged. Commercially sensitive and confidential
information that is within the scope of discovery and that does not fall within a recognized privilege
cannot be withheld from production, but it may be entitled to protection limiting its dissemination. To
that end, stipulated protective orders are routinely entered in state court. Even contested motions for
protective orders are generally granted unless the restriction proposed is likely to impair the opposing
party’s use in some unfair fashion.
The local federal court, however, has a heightened bar for such orders. Entry of a protective
order that restricts public access to such information will only be allowed on a detailed, particularized
showing of need. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F3d 1122 (9th Cir 2003) (holding that
presumption favoring public access requires a particularized showing for confidentiality). The federal
court website now has a form protective order, and good cause must be shown for any proposed
deviation from the court form.
2. Material Withheld on Basis of Privilege or Work Product. In order to protect privileged
material, specific written objections need to be served on a timely basis.
In most cases, preparation of a log of items withheld will be required. The description needs to
be sufficiently detailed to allow the challenging party to evaluate the claims of privilege. Be prepared
for the court, either federal or state, to order in-camera review for close calls. Unsubstantiated claims of
privilege may draw sanctions in both federal and state courts here.
It is always the burden of the party claiming privilege to establish the circumstances justifying
the claim. This rule stands in contrast to the burden on motions to invade work product, where the
moving party must show substantial need.
C. Motions to Compel
The moving party generally has the burden of establishing that the information being sought
falls within the scope of discovery. See, e.g., Kahn v. Pony Express Courier Corp., 173 Or App 127, 133 (2001)
(burden on moving party to overcome scope objection); Frease v. Glazer, 330 Or 364 (2000) (moving party
must show that exception to privilege applies to opposing party’s material). But see Jane Doe 130 v.
Archdiocese of Portland in Oregon, 717 FSupp2d 1120 (2010) (stating federal court position that burden on
opposing/objecting party to show request beyond scope). Format of motions is essentially the same at
both levels: the motion, memorandum, and supporting affidavits that lay out the sequence of discovery,
describe efforts at resolution, and identify key supporting documents.
D. Sanctions
Authority exists in the rule and case law for a wide range of sanctions in cases involving
discovery abuse. Awards of expenses for motions to compel are very infrequent, but outright dismissals
or judgment are not unheard of in cases where the record reflects prolonged failure to participate in
discovery. See, e.g., Asato v. Dunn, 206 Or App 753 (2006) (affirming outright dismissal as discovery
sanction). Remember that specific findings from the trial court are necessary to protect order and/or to
preserve issues. Peeples v. Lambert, 345 Or 209 (2008).

OREGON DISCOVERY
FOR OUT-OF-STATE
LAWYERS
Leslie S. Johnson
Charles J. Paternoster
OREGON DISCOVERY
OVERVIEW OF RESOURCES
Federal Other State

FRCP Court Websites ORCP
LR Legal Blogs UTCR
Bar listservs SLR
OSB CLE

OREGON DISCOVERY
1. Both the federal and state rules

structures are fairly typical of
the models you learned in law
school.
OREGON DISCOVERY
2. For first state court action, take

a look at the Uniform Trial Court
Rules (UTCR) as well as the
Supplementary Local Rules
(SLR).

OREGON DISCOVERY
3. A joint discovery plan must at

least be summarized to the
federal court, and is
recommended for any action.
OREGON DISCOVERY
4. For federal court “initial

disclosures,” Oregon has a long
history of waiving this practice.
There is a court form.

OREGON DISCOVERY
5. Serve, but do not file, discovery

requests in both courts.
OREGON DISCOVERY
6. Service is effective when you

place a request in the mail, or
on the fax line, or it reaches the
receiving party via hand-
delivery.

OREGON DISCOVERY
7. For federal court, service is

effective via e-mail at time of
ECF filing. For state court, the
parties must agree in advance
to service via e-mail.
OREGON DISCOVERY
8. Exception to federal court

model – No interrogatories in
state court actions.

OREGON DISCOVERY
9. Exception to federal court

model – No expert discovery in
state court actions. But parties
often agree to exchange
information anyways.
OREGON DISCOVERY
10. For production by a party –

The pressure is increasing for
requiring production at the time
the written response is due.

OREGON DISCOVERY
11. For production by a party –

Note the reference to
production organized
according to specific requests.
OREGON DISCOVERY
12. For production by non-party –

Note that ORCP 55 D regarding
subpoenas for documents only
requires advance notice to the
opposing counsel and certify same
in subpoena when served.

OREGON DISCOVERY
13. For depositions – Confer in

advance about suitable
deposition dates and order.
Typically, the first to ask gets
the first deposition.
OREGON DISCOVERY
14. For both courts – You must

substantively confer with
opposing counsel and certify
you have done so with any
motion.

OREGON DISCOVERY
15. For both courts – If you have court

appearances early in the case on
pleadings or pre-judgment
restraints, anticipate discovery
problems and inquire into the
court’s willingness to entertain
informal and expedited
presentation of disputes.
OREGON DISCOVERY
16. If the receiving party requests

a privilege log, it will be
required.

OREGON DISCOVERY
17. If the producing party wants a

protective order, best to work
on stipulation. Note the
federal court has a form order.
OREGON DISCOVERY
18. Be sure, in both settings, to

produce everything you might
want to use at trial despite the
vagueness of duty to
supplement in state rules.

OREGON DISCOVERY
19. Note that both courts have

shown a willingness to impose
discovery sanctions, up to and
including preclusive
evidentiary rulings and outright
dismissal of claims.
OREGON DISCOVERY
Leslie S. Johnson Charles J. (Chip) Paternoster

Kent & Johnson LLP Parsons Farnell & Grein, LLP
www.kentlaw.com www.pfglaw.com
ljohnson@kentlaw.com cpaternoster@pfglaw.com
WELCOME TO PRACTICE IN OREGON!


Chapter 3
Deposition Techniques and Strategy
David B. Markowitz
Markowitz Herbold Glade & Mehlhaf PC
Portland, Oregon
Contents
I. Protecting the Witness During Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1
II. Using Depositions at Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–3
A. Preliminary Motions to Exclude Evidence . . . . . . . . . . . . . . . . . . . . . . . . . 3–3
B. Permissible Uses of Depositions at Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–3
C. Opening Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–5
D. Reading or Playing Parts of Deposition as Substantive Evidence . . . . . . . . . . . . 3–6
E. Strategy Regarding Selecting Deposition Portions to Read . . . . . . . . . . . . . . . . 3–8
F. Unfair Introduction of Part of a Deposition . . . . . . . . . . . . . . . . . . . . . . . . . 3–9
III. What to Ask—Important Questioning Techniques . . . . . . . . . . . . . . . . . . . . . . . . 3–10
IV. Getting It All—Deposition Thoroughness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–12
Chapter 3—Deposition Techniques and Strategy

I. PROTECTING THE WITNESS DURING DEPOSITION
A. Problems with overprotection, particularly on videotape.
B. Conferring off the record during deposition.
C. Objections.
1. How to state objections.
2. Objections that are waived if not made at the deposition.
D. Instructions not to answer.

E. Ask questions, particularly in video depositions.
F. Use real-time reporting.
G. Reading and signing.
H. Obtaining court assistance in protecting your witness.

II. USING DEPOSITIONS AT TRIAL
A. Preliminary Motions to Exclude Evidence
Use motions to exclude evidence that is contradictory to opposing party’s deposition admissions.
Pope v. Benefit Trust Life Ins. Co., 261 Or 397, 494 P2d 420 (1972); Haines v. Pellet, 62 Or App 428,
660 P2d 1074, rev den 295 Or 446, 668 P2d 382 (1983); Hansen v. Bussman, 274 Or 757, 549 P2d 1265 (1976);
Dolan v. US, No. 05-3062-CL, 2008 WL 362556, *9 n29 (D Or Feb. 8, 2008).
B. Permissible Uses of Depositions at Trial
1. As substantive evidence. A deposition can be offered as substantive evidence if any one

of the following apply:
a. Deposition of a party-opponent (both federal and state court);
b. Witness is unavailable (both federal and state court); or
c. Perpetuation deposition pursuant to ORCP 39I (state court only).

ORCP 39I. Perpetuation of testimony after commencement of action.
I(1) After commencement of any action, any party wishing to perpetuate the testimony
of a witness for the purpose of trial or hearing may do so by serving a perpetuation
deposition notice.
I(2) The notice is subject to subsections C(1) through (7) of this rule and shall additionally
state:
I(2)(a) A brief description of the subject areas of testimony of the witness; and
I(2)(b) The manner of recording the deposition.
I(3) Prior to the time set for the deposition, any other party may object to the
perpetuation deposition. Such objection shall be governed by the standards of Rule 36 C.
At any hearing on such an objection, the burden shall be on the party seeking perpetuation
to show that: (a) the witness may be unavailable as defined in ORS 40.465(1)(d) or (e) or
45.250(2)(a) through (c); or (b) it would be an undue hardship on the witness to appear
at the trial or hearing; or (c) other good cause exists for allowing the perpetuation. If no
objection is filed, or if perpetuation is allowed, the testimony taken shall be admissible at
any subsequent trial or hearing in the action, subject to the Oregon Evidence Code.
I(4) Any perpetuation deposition shall be taken not less than seven days before the
trial or hearing on not less than 14 days’ notice. However, the court in which the action is
pending may allow a shorter period for a perpetuation deposition before or during trial
upon a showing of good cause.
I(5) To the extent that a discovery deposition is allowed by law, any party may conduct
a discovery deposition of the witness prior to the perpetuation deposition.
I(6) The perpetuation examination shall proceed as set forth in section D of this rule.
All objections to any testimony or evidence taken at the deposition shall be made at the
time and noted upon the record. The court before which the testimony is offered shall
rule on any objections before the testimony is offered. Any objections not made at the
deposition shall be deemed waived.
d. Opponent’s use of part of a deposition (both federal and state court).
ORS 45.260 Introduction, or exclusion, of part of deposition. If only part of a deposition

is offered in evidence by a party, an adverse party may require the party to introduce
all of it which is relevant to the part introduced and any party may introduce any other
parts, so far as admissible under the rules of evidence. When any portion of a deposition
is excluded from a case, so much of the adverse examination as relates thereto is excluded
also.

2. To impeach or contradict trial testimony of deponent.
3. To refresh the witness’s memory.
C. Opening Statement
See David B. Markowitz and Lynn R. Nakamoto, “Using Depositions During Opening
Statements,” OSB Litigation Journal (June 2009) (also found at http://www.mhgm.com/our-resources/
articles/Using-Depositions-During-Opening-Statements).
1. Use deposition admissions.
2. Explain the deposition process.

D. Reading or Playing Parts of Deposition as Substantive Evidence
See Multnomah County Presiding Court Task Force on Civil Jury Trial Practices,
Recommended Practices for Civil Jury Trials in Multnomah County Circuit Court § VII(E) (2008) (found
at http://www.mbabar.org/assets/documents/courts/civiljurytrialreport.pdf).
The use of video depositions as a means for presenting deposition testimony is strongly
encouraged.
1. With respect to the use of video depositions at trial, the preferred method is to
have the video deposition synchronized with a written transcript of the deposition so that
jurors are able to read along while they watch the video deposition.
2. Depositions used at trial should be tightly edited
a. For all depositions, whether presented by video or reading, counsel should edit
depositions down to essential testimony for presentation to the jury. “Essential” means
only those portions important to the merits of the case and not duplicative of other
testimony. All objections and attorney colloquy should be removed, unless the attorney’s
conduct is important for the jury to consider.
b. To encourage sustained jury attention, every effort should be made to reduce the
presentation time of a deposition at trial to no more than 30 minutes.
3. Counsel should agree to a short summary of the witness’ background as well as

any other appropriate information in advance of the showing of the video deposition or
the reading of deposition testimony. This information should include a brief introduction
related to the witness’ background and relationship to the case so that the only testimony
of the witness to be provided to the jury is what is essential to the merits of the case.
4. Either the judge or counsel offering the deposition testimony should provide a brief
explanation to the jury prior to the presentation of the deposition testimony, explaining
when the deposition was taken, who was asking questions at the deposition and whether
the witness was unavailable to testify at trial or the parties agreed to the presentation of
the testimony by deposition.

5. The following is the preferred method for dealing with objections to the use of
deposition testimony:
a. Counsel offering the deposition testimony should mark by brackets in blue the
testimony from the deposition transcript it seeks to present to the jury by video or read to
the jury from the transcript.
b. After receiving this transcript from the offering counsel, the responding counsel
should note in red on the transcript any objections to the offered testimony and then
bracket in red any additional testimony offered.
c. Upon receipt, offering counsel should note in blue on the transcript any objections
to the testimony offered by the responding counsel.
d. In order to ensure efficient presentation of deposition testimony to the jury, all

objections to deposition testimony should be ruled upon prior to the presentation of the
deposition testimony to the jury. Deposition transcripts, with objections marked, should
be submitted to the judge when exhibits are submitted. The judge, after providing a
hearing, should rule in a timely fashion so as to allow the presenting counsel to do all
necessary deposition editing.
6. Prior to the first time deposition testimony is presented to the jury, the judge should
instruct the jury that deposition testimony is about to be offered by a party and that jurors
should consider this testimony in the same way as if the witness was present to testify in
person.

a. The judge should instruct the jury as follows: “A deposition is the sworn testimony
of a witness taken before trial. The witness is placed under oath to tell the truth and
lawyers for each party may ask questions. You are about to have certain testimony [read
to you] [shown by video] from depositions. Deposition testimony is entitled to the same
consideration and is to be judged, insofar as possible, in the same way as if the witness
had been present in court to testify.”
b. When counsel intend to present deposition testimony to jurors without the use
of a video deposition, the preferred method of presentation is to use a reader who will
read aloud all deposition answers. The reader should be instructed to read the deposition
answers from the transcript in a neutral way, understanding that the goal is to provide
a fair presentation of the deposition testimony to the jury irrespective of which party
obtained the services of the reader. The identity of the reader of the deposition testimony
should not be disclosed to the jury.
E. Strategy Regarding Selecting Deposition Portions to Read
1. Use unambiguous questions and answers
2. Use stand alone questions and answers
3. Avoid long passages
4. Demonstrate a spirit of fairness and candor

F. Unfair Introduction of Part of a Deposition
What to do when your opponent introduces an unfair portion of a deposition.
ORS 45.260. Introduction, or exclusion, of part of deposition. If only part of a deposition

is offered in evidence by a party, an adverse party may require the party to introduce all of it
which is relevant to the part introduced and any party may introduce any other parts, so far as
admissible under the rules of evidence [emphasis added].
FRCP 32(a)(6): “If a party offers in evidence only part of a deposition, an adverse party may
require the offeror to introduce other parts that in fairness should be considered with the part introduced,
and any party may itself introduce any other parts.”

III. WHAT TO ASK—IMPORTANT QUESTIONING TECHNIQUES
A. Ask the big questions. These questions, if answered as desired, will directly accomplish a goal
or major point within a goal. Big questions are a direct attempt to try to prove or determine an issue.
1. How to ask the big questions.
2. When to ask the big questions.
B. Question about details and require precise answers. Don’t accept answers that are general
statements capable of multiple interpretations. Ask follow-up questions about the details in order to
make the witness precisely define the answer.
C. Determine and pin down the source of all knowledge.

D. Determine the ability to testify accurately.
E. Ask “why” questions.

IV. GETTING IT ALL—DEPOSITION THOROUGHNESS
A. Emphasis. Some goals are more important than others. Some questions are more important.
Most deposition time should be devoted to the most important goals and the most important questions.
B. Ask summary questions. In one question, summarize the witness’s prior testimony and ask the
witness to agree that the list is complete.
C. Ask more open-ended questions.
D. Ask questions that might lead to admissible evidence, even though the answer may not be
admissible evidence.
E. Don’t be intimidated by the defending lawyer’s time pressures or the witness’s evasiveness.



Chapter 4
Local Practice in the District of Oregon
C. Marie Eckert
Miller Nash LLP
Portland, Oregon
Maya P. Waldron
Miller Nash LLP
Portland, Oregon
Contents
I. Helpful Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–1
II. Case Filing and Initial Conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–1
A. Divisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–1
B. Electronic Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–1
C. Service of Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–1
D. Scheduling Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–1
III. Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–2
A. Initial Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–2
B. Protective Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–2
C. Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–2
D. Stipulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–3
IV. Motions for Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–3
A. Factual Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–3
B. Evidentiary Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–3
C. Conferral Requirement and Certification Provisions . . . . . . . . . . . . . . . . . . . 4–3
V. Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–3
A. Proposed Pretrial Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–3
B. Magistrate Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–3
VI. Professionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–3
Appendix—Amendments to the Local Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–5
Chapter 4—Local Practice in the District of Oregon

I. HELPFUL RESOURCES
A. District court’s website: www.ord.uscourts.gov.
B. Information for attorneys: http://ord.uscourts.gov/index.php/attorneys.
1.· E-filing.
2.· Local rules.
3.· Forms (including the stipulated protective orders, mentioned below).
4.· Practice tips.
5.· Court fees.
C. Online CM/ECF User Manual: http://ord.uscourts.gov/index.php/about-cmecf-and-pacer/
user-manual.
Instructions for e-filing.
D. OSB Legal Publications: Federal Civil Litigation in Oregon (but last updated in 2009). Available at
www.osbar.org.
General reference manual for various areas of state and federal law.
II. CASE FILING AND INITIAL CONFERENCES
A. Divisions
1. Portland, Eugene, Pendleton, and Medford.
2. Identify the division where “divisional venue” lies in the caption of the complaint.
3. “Divisional venue” means the division of the court in which:
a. A substantial part of the events or omissions giving rise to the claim occurred; or
b. A substantial part of the property that is the subject of the action is situated. LR 3-2.
B. Electronic Filing
1. “Case initiating documents” must be filed electronically with the court, unless the attorney
is not a “registered user.” LR 100-2.
2. Counsel must file a civil cover sheet, form JS-44. LR 3.6, Practice Tip 1.
3. Filing deadline is 11:59 p.m. LR 5-1.
C. Service of Pleadings
1. Service of pleadings is complete upon the transmission of the “Notice of Electronic Filing.”
LR 100-8.
2. Three days are added to the response deadline regardless of the means by which the
triggering paper is served. This is intended to remove the incentive to serve papers (including discovery
requests) by hand delivery or by leaving at person’s office or dwelling, in order to keep the receiving
party from having the three-day period provided by Fed R Civ P 6(d) for other means of service. LR 6.
D. Scheduling Orders
1. Opposing parties must hold an initial conference of counsel under Fed R Civ P 26(f) for
discovery planning within 30 days after all defendants have been served. LR 26.1.
2. After the conference of counsel, the lawyers must contact the assigned judge’s courtroom
deputy to set an initial conference with the court for scheduling and planning. LR 16.2.
3. Lawyers must be prepared to orally report their discovery plan to the court. LR 26.1.
4. Following the scheduling and planning conference, the court will typically issue an order
setting deadlines for completing discovery, filing dispositive motions, exchanging expert witness
disclosure reports, and other pretrial filings.
5. Once the schedule is set, the parties cannot stipulate to extend any deadline in the court’s
discovery and scheduling orders. LR 29.1. If a party wants to modify these deadlines, the lawyer must
show:
a. Good cause why the deadlines should be modified;
b. Effective prior use of time;
c. A suggested new date for the deadline in question; and
d. An assessment of the effect of the proposed extension on other existing deadlines, settings,
or schedules. LR 16.3(a).
III. DISCOVERY
A. Initial Disclosures
1. Initial disclosures can generally be waived by the parties. LR 26-2.
2. New LR 26-7: In initial discovery for employment cases alleging adverse actions, plaintiff
and defendant must disclose certain information and produce certain documents related to the
employment relationship and termination.
3. New LR 26-6: A model order streamlines the discovery of electronically stored information
in patent cases (link provided in the online version of LR 26-6).
a. The model order can be modified if the parties agree or one party shows good cause.
b. The model order generally excludes metadata and limits e-mail production to specific
issues, custodians, and search terms.
c. Inadvertent production of privileged documents under the model order does not waive
the privilege.
B. Protective Orders
1. The District of Oregon provides two form stipulated protective orders, which were
revised this year:
a. The first-tier protective order includes only a “confidential” designation;
b. The second-tier protective order includes a “confidential” and “attorneys’ eyes only”
designation.
2. The court recommends that you use one of these protective orders unless you have a very
good reason to modify them.
C. Motions
1. All motions, other than motions for temporary restraining orders, must contain the
certification that the parties conferred and attempted to resolve the dispute, as required by LR 7.1.
2. The moving party in a discovery motion may not file a reply, unless specifically directed
to do so by the court. LR 26-3(c).
3. Parties may contact the assigned judge to set a telephone conference to resolve any
discovery problems. LR 26.3.
D. Stipulations
1. Parties cannot agree to extend any deadlines established by the case scheduling order;
any filing deadline established by the court, the local rules, or the federal rules; any court-scheduled
conference; the pretrial order date; or the trial date. LR 29.1. Only a court order can alter these deadlines.
IV. MOTIONS FOR SUMMARY JUDGMENT
A. Factual Positions
Parties must support factual positions with citations to the record. LR 56-1.
The parties no longer need to file a separate concise statement of material fact.
B. Evidentiary Objections
Parties may assert evidentiary objections in a response or reply memorandum.
1. If the nonmoving party makes an evidentiary objection in the response memorandum, the
moving party may address the objection in its reply. The nonmoving party cannot file any additional
briefing on its evidentiary objection.
2. If the moving party raises an evidentiary objection in its reply, the nonmoving party has
seven days to address the objection in a surreply. The moving party cannot file any additional briefing
on its evidentiary objection.
C. Conferral Requirement and Certification Provisions
Motions for summary judgment are subject to the conferral requirement and certification
provisions of LR 7.1, as are evidentiary objections raised in a response or reply memorandum. LR 7.1
and 56-1(b).
V. TRIAL
A. Proposed Pretrial Order
Parties must submit a proposed pretrial order, unless the parties consent otherwise, subject to
the court’s approval. LR 16-5. It should contain:
1. The nature of the action;
2. It should contain jury or no;
3. All agreed facts and disputed facts;
4. A statement of each claim/defense;
5. Amendments to the pleadings.
B. Magistrate Judges
Magistrate judges may conduct trial if the parties consent and may be able to set earlier and
firmer trial dates. LR 73-1 and LR 73-2. Parties are encouraged to consent to magistrates.
VI. PROFESSIONALISM
A. Statement of Professionalism must be adhered to by all attorneys admitted to practice in the
District of Oregon. LR 83-7.
The Statement of Professionalism sets forth 14 “general guidelines” for practice.
B. Counsel must notify the court if, for example, counsel is suspended/disbarred by any court or
is convicted of a felony. LR 83-6.
C. Counsel must cooperate and be courteous with each other in all phases of litigation. The court can
impose sanctions if it finds that counsel has been unreasonable in not accommodating the legitimate requests
of opposing counsel. The court can also consider the lack of cooperation in attorney fee awards. LR 83-8.

APPENDIX—AMENDMENTS TO THE LOCAL RULES1

Once again, the Local Rules have been amended, effective March 1, 2013. Instead of wincing
with displeasure at the prospect of reading this article to learn about the changes, you should smile
with anticipation. Although the last amendments to the Local Rules took effect only a year ago on
March 1, 2012, the Local Rules Committee, under the capable leadership of Susan Marmaduke, decided
to propose further amendments this year in order to correct errors, eliminate troublesome issues, and,
most importantly, make litigation in federal court less costly.
In November 2012, the Committee posted a notice of the proposed amendments for public
comment on the Court’s website, on various listservs (Federal Bar Association, OTLA, OADC, and
OWLS), through emails to various law firms, and otherwise. Despite this widespread notice, the
Committee received few comments by the deadline of December 7, 2012. The Committee seriously
considered all comments received and made some revisions in response. The proposed amendments,
as revised, were then submitted to and approved by the Court.
Two amendments are designed to reduce the cost of litigation by giving lawyers ready access to
the tools they need. First, the Committee recognized that due to globalization, lawyers are increasingly
faced with the prospect of obtaining testimony from witnesses in foreign countries. Because this is
an unfamiliar area for any lawyer without experience in international law, researching how to obtain
that testimony can be time-consuming and expensive. Therefore, the Committee did that research and
added Practice Tip to LR 28-1 with references to authoritative resources, including website links, on
how to take depositions and prepare letters rogatory in other countries.
Another area that gives lawyers frequent headaches is drafting a protective order that satisfies
both opposing counsel and the Court. In 2011 the Committee adopted two form Stipulated Protective
Orders (“first-tier” and “second-tier”) to which it made some revisions this year. These forms are
available on the Court’s website on the “For Attorneys” page under the “Forms” tab and “Forms
for Civil Cases” menu. The “first-tier” form allows documents or other materials to be designated as
“Confidential,” while the “second-tier” form also includes an “Attorneys’ Eyes Only” designation.
These forms contain provisions commonly found in protective orders, but several unique provisions
are worth noting.
Paragraph 3 of the forms requires a stamp of confidentiality on each page of a document “if
practical to do so.” Since it usually is not practical to stamp “Confidential” on each page of an electronic
document, you may use an alternate mode of designation, such as an email notice to opposing counsel
identifying certain electronic documents as confidential. Another provision deals with disputes over
whether a document should be protected as confidential. When a dispute arises, the parties must confer
and assess whether redaction is a viable alternative to complete non-disclosure. If they cannot agree,
the next step is filing a motion. The party seeking to protect a document from disclosure bears the
burden of establishing good cause for non-disclosure. Another provision provides that if a confidential
document is inadvertently disclosed, the receiving party or counsel who knows or reasonably knows
that it should be confidential may not disclose the document. Since the Court has approved these
forms, you are urged to use one of them in every case that requires a protective order, absent a strong
and specific reason to modify them.
Also with respect to proposed protective orders, note that LR 3-7 now requires the inclusion of
language to instruct the Clerk whether the parties, through their counsel, may have remote electronic
access to the documents and to identify those parties by name.
By U.S. Magistrate Judge Janice M. Stewart. Originally published in the “District of Oregon” newsletter. Reprinted
1
with permission of author.

Particularly noteworthy are two new rules which are specifically targeted at reducing the rising
cost of discovery in patent and employment cases. New LR 26-6 adopts the model order which was
authored by Chief Judge Randall Rader of the Federal Circuit regarding discovery of Electronically
Stored Information (“ESI”) in patent cases. The rule contains a hyperlink to the model order. To
promote a “just, speedy, and inexpensive determination” of the action, the model order streamlines the
production of Electronically Stored Information (“ESI”). Although the model order can be modified by
agreement or by court order for good cause, costs will be shifted for disproportionate ESI production
requests pursuant to Fed. R. Civ. Pro. 26. Among other things, the model order excludes metadata
absent a showing of good cause and limits email production requests to specific issues and to a total
of five custodians per producing party and a total of five search terms per custodian. A party serving
email production requests with additional search terms must pay all reasonable costs caused by such
additional discovery. Recognizing that a major cause of high costs is the pre-production review of
documents to avoid disclosure of privileged documents, the model order also states that, pursuant to
Fed. R. Ev. 502(d), the inadvertent production of work product or other privileged ESI does not waive
the privilege. Before adopting this model order as a local rule, the Committee sought the views of the
IP Section of the Oregon State Bar and the Oregon Patent Law Association and received favorable
comments during the public notice period.
In employment cases, new LR 26-7 adopts, with only minor modifications, the Initial Discovery
Protocols for Employment Cases initiated by the Advisory Committee on Federal Rules of Civil
Procedure and implemented in November 2011 by the Federal Judicial Center as a pilot project by
individual district court judges. These protocols were developed by a group of highly experienced
attorneys from across the country who regularly represent parties in employment cases, including Chris
Kitchel at Stoel Rives LLP in Portland. Before adopting this rule, the Committee solicited comments
from Chris Kitchel as a representative of the defendants’ bar, Dana Sullivan as a representative of the
plaintiffs’ bar, and from others. Despite some comments in opposition, the overwhelming majority of
the Committee approved adopting these protocols as a local rule.
This new rule applies to all employment cases that challenge one or more alleged adverse actions,
but does not apply to class actions or to cases involving only allegations regarding: (1) discrimination
in hiring; (2) harassment/hostile work environment; (3) violations of wage and hour laws under the
FLSA; (4) failure to provide reasonable accommodations under the ADA; (5) violations of the FMLA;
and (6) violations of ERISA. In addition, a party may seek an exemption from the Court based on good
cause.
The purpose of LR 26-7 is to encourage parties and their counsel to exchange the most relevant
information and documents early in the case, to assist in framing the issues to be resolved and to
plan for more efficient and targeted discovery. To that end, both the plaintiff and the defendant must
provide certain information and documents (“Initial Discovery”) within 30 days (or 60 days when
the United States is a defendant) after the defendant has submitted a responsive pleading or motion.
The information and documents identified are those most likely to be requested automatically by
experienced counsel in such cases, and the relevant time period is three years before the date of the
alleged adverse action. As a result, the parties in such cases no longer will need to issue their standard
discovery requests which frequently draw objections and result in discovery disputes.
Other amendments to the Local Rules fall into the category of eliminating troublesome issues.
One such issue is the additional three days added to the response deadline under Fed. R. Civ. P. 6(d)
for certain kinds of service (mail, leaving with the clerk, electronic service and delivery by other means
with consent), but not for service by hand delivery. As a result, more and more papers (including
discovery requests) were being served by hand delivery to avoid the extra three days. To remove any
incentive for that escalating practice, new LR 6 applies the three-day extension to the response deadline
for any item served under Fed. R. Civ. P. 5, regardless of the means of service.
Another troublesome issue was how to apply the new page- and word-count limitations added
to the Local Rules last year. Some attorneys do not rely on word count to comply with length limitations,
yet seemingly were required to submit a word-count certification. Amendments to LRs 7-2(b), 26-3(b),
54-1(c), and 54-3(e) clarify that the page- and word-count limitations are alternative limitations and
that an attorney who does not rely on word count to comply with length limitations need not submit a
word-count certification.
Some minor amendments were made to the mediation rules. LR 16-4(f) now states that if the
parties cannot agree upon a Court-sponsored mediator, each party must submit its list of three acceptable
mediators to the assigned judge who will then designate a mediator. This amendment permits greater
input from the parties into the judge’s mediator selection when the parties do not agree. LRs 16-4(j) and
83-6(c) provide that disciplinary sanctions may result in (1) the rejection of an attorney’s application
to serve as a Court-sponsored mediator, or (2) termination of his or her service as a Court-sponsored
mediator.
Other amendments fall in the category of “housekeeping” items and are briefly summarized as
follows:
LR 3-1 clarifies that the Court is open to receive filings in Portland, Eugene, and Medford.
LR 3-3(b) (“Upon motion of any party, the Court may order that a case be tried in Pendleton”) is
deleted and renumbered LR 3-3(c) accordingly.
LR 5-1(j) was added to require transcripts of courtroom proceedings to be electronically filed.
LR 67 clarifies procedures for preparing orders to deposit and withdraw monies.
LR 41-1(c) states that the Court “may” (rather than “will”) direct dismissal with prejudice upon
notice of settlement “unless otherwise specified” in order to allow greater flexibility to the parties and
to the Court for the disposition of the case.
LR 83-6(a) requires an attorney who has been disciplined in another jurisdiction to report the
discipline to the Clerk, in addition to the Chief Judge and assigned judge. The amendment is designed
to hasten the issuance of Show Cause Orders for reciprocal discipline in such cases. The new Practice
Tip emphasizes the importance of timely reporting discipline imposed in another jurisdiction to avoid
the likelihood of delayed reciprocal discipline in the District of Oregon.
LR 83-11(a) and (c) clarify that an attorney appearing pro hac vice may withdraw from a case by
notice, rather than by filing a motion, when an attorney from the same firm remains on the case.
Attorneys who are Registered CM/ECF Users should note two new Standing Orders. Standing
Order 2012-3 requires such users to open new civil cases electronically, and Standing Order 2012-6
requires such users to electronically file documents covered by a protective order in a civil case and
permits remote access to those documents. Conforming amendments were made to LRs 3-5, 3-6, 3-7,
3-8, 3-0, 16-1, 100-2, and 100-5.
The Local Rules Committee will continue to meet on a regular basis to develop rules or forms
in an effort to reduce the costs of litigation, to work toward simplifying the current rules, and to focus
on new rules regarding e-discovery that may be beneficial to the litigation process. The Committee
welcomes any and all suggestions. Please send your suggestions to David Bledsoe, the new chair of the
Committee (DBledsoe@PerkinsCoie.com), or to Laura Brennan, Deputy Director of Operations in the
Clerk’s Office (Laura_Brennan@ord.uscourts.gov).


Chapter 5
Oregon’s Judicial Branch1
The Honorable David V. Brewer
Oregon Supreme Court
Salem, Oregon
Contents
Oregon Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–1
Powers and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–1
Administrative Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–1
Admission and Discipline of Lawyers and Judges . . . . . . . . . . . . . . . . . . . . . . . . . 5–1
Oregon Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–2
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–2
Reviews and Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–2
Oregon Tax Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–2
Magistrate Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–2
Regular Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–3
Oregon Circuit Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–3
Excerpted with permission from the Oregon Blue Book, http://bluebook.state.or.us/state/judicial/judicial.htm.

1
Chapter 5—Oregon’s Judicial Branch

OREGON SUPREME COURT

Website: http://courts.oregon.gov/Supreme/
Address: Supreme Court Bldg., 1163 State St., Salem 97301-2563
Records and Case Information: 503-986-5555; Oregon Relay 711
Fax: 503-986-5560
Staff Directory from Oregon.gov: http://dasapp.oregon.gov/statephonebook/display.
asp?agency=19800&division=00010
The Supreme Court of Oregon has seven justices, elected by nonpartisan, statewide ballot, to
serve six-year terms. Justices elected to the Supreme Court must be United States citizens, members
of the Oregon State Bar and residents of Oregon for at least three years. The court has its offices and
courtroom in the Supreme Court Building one block east of the State Capitol in Salem. The members of
the court elect one of their number to serve as chief justice for a six-year term.
Powers and Authority
The Supreme Court was created, and its role largely defined, by Article VII of the Oregon
Constitution, as amended. It is primarily a court of review in that it reviews the decisions of the Court
of Appeals in selected cases. The Supreme Court usually selects cases with significant legal issues
calling for interpretation of laws or legal principles affecting many citizens and institutions of society.
When the Supreme Court decides not to review a Court of Appeals case, the Court of Appeals’ decision
becomes final. In addition to its discretionary review function, the Supreme Court hears direct appeals
in death penalty, lawyer and judicial discipline, and Oregon Tax Court cases. It may accept original
jurisdiction in mandamus, quo warranto and habeas corpus proceedings. It also reviews ballot measure
titles, prison siting disputes, reapportionment of legislative districts, and legal questions on Oregon
law referred by federal courts.
Administrative Authority
The chief justice is the administrative head of the Judicial Department and, as such, exercises
administrative authority over and supervises the appellate, circuit and tax courts. The chief justice
makes rules and issues orders to carry out necessary duties and requires appropriate reports from
judges and other officers and employees of the courts. As head of the Judicial Department, the chief
justice appoints the chief judge of the Court of Appeals and the presiding judges of all state trial courts
from the judges elected to those courts. The chief justice adopts certain rules and regulations respecting
procedures for state courts. The chief justice also supervises a statewide plan for budgeting, accounting
and fiscal management of the judicial department.
The chief justice and the Supreme Court have the authority to appoint lawyers, elected judges
and retired judges to serve in temporary judicial assignments.
Admission and Discipline of Lawyers and Judges
The Supreme Court has responsibility for admitting lawyers to practice law in Oregon and the
power to reprimand, suspend or disbar lawyers whose actions have been investigated and prosecuted
by the Oregon State Bar. In admitting lawyers, the Supreme Court acts on the recommendation of the
Board of Bar Examiners, which conducts examinations for lawyer applicants each February and July
and which screens applicants for character and fitness to practice law. The Supreme Court appoints
at least 14 members to the Board of Bar Examiners. The board includes two “public” members who
are not lawyers. The Supreme Court also has the power to censure, suspend or remove judges after
investigation and recommendation by the Commission on Judicial Fitness and Disability.
OREGON COURT OF APPEALS

Website: http://courts.oregon.gov/COA/
Address: Supreme Court Bldg., 1163 State St., Salem 97301-2563
Records and Case Information: 503-986-5555; Oregon Relay 771
Fax: 503-986-5865
Created in 1969 as a five-judge court, the Court of Appeals was expanded to six judges in 1973
and to ten in 1977. The 2012 House Bill 4026B amended ORS 2.540 to increase the number of Court of
Appeals judges from 10 to 13. The bill provides that the new positions become operative on October 1,
2013, and that they should be filled by gubernatorial appointment. The judges, otherwise elected on a
statewide, nonpartisan basis for six-year terms, must be United States citizens, members of the Oregon
State Bar and qualified electors of their county of residence. The chief justice of the Supreme Court
appoints a chief judge from among the judges of the Court of Appeals.
Court of Appeals judges have their offices in the Justice Building in Salem and usually hear cases
in the courtroom of the Supreme Court Building. The court ordinarily sits in panels of three judges. The
Supreme Court has authority to appoint a Supreme Court justice, a circuit court judge or an Oregon Tax
Court judge to serve as a judge pro tempore of the Court of Appeals. The 1997 Legislature created an
appellate mediation program called the Appellate Settlement Conference Program; see ORS 2.560(3).
Jurisdiction
The Court of Appeals has jurisdiction to review appeals of most civil and criminal cases and
most state administrative agency actions. The exceptions are appeals in death penalty, lawyer and
judicial disciplinary, and Oregon Tax Court cases, which go directly to the Oregon Supreme Court.
Reviews and Decisions
A party aggrieved by a decision of the Court of Appeals may petition the Supreme Court for
review within 35 days after the Court of Appeals issues its decision. The Supreme Court determines
whether to review the case. The Supreme Court allows a petition for review whenever at least one
fewer than a majority of the Supreme Court judges participating vote to allow it.
OREGON TAX COURT
Website: http://courts.oregon.gov/Tax/
Address: Robertson Bldg., 1241 State St., 4th Floor, Salem 97301-2563
Phone: 503-986-5645; TTY: 503-986-5651
Fax: 503-986-5507
The Oregon Tax Court has exclusive, statewide jurisdiction in all questions of law or fact arising
under state tax laws, including income taxes, corporate excise taxes, property taxes, timber taxes,
cigarette taxes, local budget law and property tax limitations.
Magistrate Division
Address: Robertson Bldg., 1241 State St., 3rd Floor, Salem 97301-2563
Phone: 503-986-5650
The Oregon Tax Court consists of two divisions: the Magistrate Division and the Regular
Division. The judge of the Oregon Tax Court appoints a presiding magistrate and one or more other
magistrates to serve in the Magistrate Division.
Trials in the Magistrate Division are informal proceedings. Statutory rules of evidence do not
apply, and the trials are not reported. The proceedings may be conducted by telephone or in person. A
taxpayer may be represented by a lawyer, public accountant, real estate broker or appraiser.
The filing fee is $240. All decisions of the magistrates may be appealed to the Regular Division
of the Oregon Tax Court.
Regular Division
Appeals from the Magistrate Division are made directly to the Regular Division of the Oregon
Tax Court. The judge of the Oregon Tax Court presides over trials in the Regular Division. The Regular
Division is comparable to a circuit court and exercises equivalent powers. All trials are before the judge
only (no jury) and are reported. The parties may either represent themselves or be represented by an
attorney. Appeals from the judge’s decision are made directly to the Oregon Supreme Court. The filing
fee is $240.
The judge serves a six-year term and is elected on the statewide, nonpartisan judicial ballot.
OREGON CIRCUIT COURTS
Website: http://courts.oregon.gov/OJD/courts/circuit/index.page?
Circuit Court Judges Phone Directory from Oregon.gov: http://dasapp.oregon.gov/statephonebook/
display.asp?agency=19800&division=00150
The circuit courts are the state trial courts of general jurisdiction. The circuit courts have
juvenile jurisdiction in all counties except Gilliam, Morrow, Sherman and Wheeler, where the county
court exercises juvenile jurisdiction except for termination of parental rights proceedings, over which
the circuit courts have exclusive jurisdiction. The circuit courts also exercise jurisdiction in probate,
adoptions, guardianship and conservatorship cases in all counties except Gilliam, Grant, Harney,
Malheur, Sherman and Wheeler.
Circuit court judges are elected on a nonpartisan ballot for a term of six years. They must be
citizens of the United States, members of the Oregon State Bar, residents of Oregon for at least three
years and residents of their judicial district for at least one year (except Multnomah County judges, who
may reside within ten miles of the county). Since January 1, 2007, there are 173 circuit judges serving
the 36 Oregon counties. The circuit judges are grouped in 27 geographical areas called judicial districts.
Multnomah County district has 38 circuit judges; Lane, 15; Marion, 14; Washington, 14; Clackamas, 11;
Jackson, 9; Deschutes, 7; Coos-Curry, 6; four districts have five judges, three districts have four judges,
six districts have three judges, three districts have two judges and three districts have one judge.
To expedite judicial business, the chief justice of the Supreme Court may assign any circuit judge
to sit in any judicial district in the state.


Chapter 6
The Discipline Process: How It
Works and How to Avoid It
Linn D. Davis
Assistant Disciplinary Counsel, Disciplinary Counsel’s Office
Oregon State Bar
Tigard, Oregon
John S. Gleason
Disciplinary Counsel and Director of Regulatory Services
Oregon State Bar
Tigard, Oregon
Helen M. Hierschbiel
General Counsel
Oregon State Bar
Tigard, Oregon
Troy J. Wood
Assistant General Counsel, Client Assistance Office
Oregon State Bar
Tigard, Oregon
Contents
Enforcing the Rules: A Look at Lawyer Discipline in Oregon . . . . . . . . . . . . . . . . . . . . . . . 6–1
Investigation and Probable Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–1
Bar Prosecutions: Trial Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–3
Bar Prosecutions: Appellate Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–4
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–5
About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–5
Frequent Citations for Applicable Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–7
Client Assistance Office Flowchart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–29
Discipline Process Flowchart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6–31
Chapter 6—The Discipline Process: How It Works and How to Avoid It

ENFORCING THE RULES: A LOOK AT LAWYER DISCIPLINE IN OREGON1

Oregon lawyers may have an understandable desire to stay as far away from the lawyer discipline
system as possible. However, a desire to avoid discipline is no reason to be uninformed on the topic,
and we have had a number of requests recently to remind Oregon lawyers how the system works. So,
here it goes.
The lawyer discipline system is governed by provisions in ORS Chapter 9 and the Bar Rules of
Procedure (BRs) approved by the Oregon Supreme Court. (Bar Rules can be found at http://www.
osbar.org/_docs/rulesregs/rulesofprocedure.pdf.) The Oregon State Bar is responsible for the initial
intake, investigative and prosecutorial functions within the system. The adjudicative function is carried
out at the trial level by members of the Disciplinary Board, who are Oregon Supreme Court appointees,
and by the court itself on appeal.
Investigation and Probable Cause
Client Assistance Office. All inquiries and complaints (telephone, letter, electronic and in-
person) about Oregon lawyers are first reviewed by the bar’s Client Assistance Office (CAO), which
handles initial intake and screening. Many complaints and allegations brought to the bar’s attention,
even if true, do not involve ethical misconduct. CAO staff dismisses those matters, providing guidance
as appropriate to complainants about other options and resources, and to lawyers about how to deal
with minor client concerns or communication problems before they ripen into a disciplinary problem.
Under the rules, complainants have a right to appeal a CAO dismissal. BR 2.5(c).
For allegations that do implicate rules of professional conduct, CAO staff asks the lawyer
to respond and may also gather additional information from other sources. Ultimately, the Client
Assistance Office determines whether there is sufficient evidence to support a reasonable belief that
misconduct may have occurred. BR 2.5(b). If so, CAO refers the matter to Disciplinary Counsel’s Office
for a more in-depth investigation. In a typical year, CAO will review roughly 1500 matters, referring
15–20 percent to disciplinary counsel.
Disciplinary Counsel’s Office. Disciplinary Counsel’s Office (DCO) investigates all written
complaints referred to it by the Client Assistance Office. DCO also may initiate an investigation
without a written complaint, typically based on civil or criminal court filings, police reports, discipline
imposed on a lawyer in another jurisdiction, media reports or other sources. BR 2.6(a) and 2.7. In
addition, notices from financial institutions of overdrafts on lawyer trust accounts are investigated by
disciplinary counsel. See RPC 1.15-2(i).
Lawyers are asked to respond to the allegations made about them and to answer specific inquiries
about their conduct. Both the complainant and the lawyer are given the opportunity to comment on
written material submitted by the other. Failure to respond to an ethics inquiry is an independent
ground for discipline under RPC 8.1(a)(2), and lawyers have been sanctioned for this violation even if
all the substantive allegations against the lawyer were found to have no merit. See In re Hereford, 306
Or 69, 756 P2d 30 (1988);In re Miles, 324 Or 218, 923 P2d 1219 (1996). Remarkably, failing to respond to
an ethics complaint is the most easily avoidable disciplinary violation, but continues to be one of the
most common, year-in and year-out.
At the conclusion of its investigation, disciplinary counsel determines if probable cause
of misconduct exists. If there appears to be probable cause, DCO reports on the matter to the State
Professional Responsibility Board (SPRB). BR 2.6(c). Complaints lacking in probable cause are dismissed,
with notice to complainants that they have a right to appeal a staff dismissal to the SPRB. BR 2.6(b).
© 2013 Jeff Sapiro. Reprinted with permission from the Oregon State Bar Bulletin, April 2013.
1

Investigations are not deferred merely because a complainant or a witness becomes uncooperative,
a civil dispute between the complainant and lawyer has been settled or because related civil or criminal
proceedings are pending. BR 2.8. However, lawyers subject to a concurrent criminal investigation may
invoke a constitutional privilege and decline to provide incriminating information to the bar. Spevack
v. Klein, 385 US 511, 87 SCt 625, 17 LEd 2d 574 (1967).
Local Professional Responsibility Committees (LPRCs). Disciplinary counsel assigns some
investigations to LPRCs, typically when a lawyer does not respond to initial staff inquiries. There
are seven LPRCs around the state, made up of unpaid volunteer lawyers. See, ORS 9.532; BR 2.3(a).
The committees are asked to complete investigations within a set time period and report back to
disciplinary counsel. LPRCs have subpoena power to aid them in investigations. Disciplinary counsel
also is authorized to utilize special investigators other than LPRCs to investigate matters. BR 2.2. This
is done occasionally when the complexity or cross-jurisdictional nature of a complaint requires it.
State Professional Responsibility Board (SPRB). The SPRB is comprised of eight lawyers
representing regions of the state and two nonlawyers, serving four year terms as unpaid volunteers.
The board acts like a grand jury in deciding whether disciplinary charges are warranted. ORS 9.532; BR
2.3(b). The SPRB meets monthly either in person or by conference call. At each meeting, board members
review investigative reports and complaint files distributed to them in advance, discuss each matter
and vote on appropriate action. Although lawyers subject to disciplinary proceedings may form a belief
that bar action is staff-driven, the SPRB is an extremely engaged, deliberative body that provides the
element of peer review to the charging phase of the system.
Options available to the SPRB, under BR 2.6(c), include:
F Referring the matter back to disciplinary counsel or to an LPRC for further investigation;
F Dismissing the matter if probable cause does not exist to believe misconduct has occurred.
There is no further appeal from an SPRB dismissal, although the board may reconsider a matter
if presented with new evidence. BR 2.6(e)(1);
F Issuing a letter of admonition to a lawyer if the SPRB believes a violation occurred but was
not of a serious nature. Admonitions are not considered formal discipline. In re Cohen, 330 Or 489,
8 P3d 953 (2000). A lawyer may reject an admonition letter, in which case a formal disciplinary
proceeding is commenced. BR 2.6(c)(1)(B). Note that if a lawyer rejects an admonition and is
found at the subsequent hearing to have committed an ethics violation, the opportunity for an
admonition no longer exists; an admonition is not a sanctioning option in a formal disciplinary
proceeding. See BR 6.1(a). The SPRB issues roughly 40–50 admonitions a year;
F Authorizing a formal disciplinary proceeding when there is probable cause to believe
misconduct has occurred. In a typical year, around 100 investigations will lead to formal
charges. After charges are authorized, the SPRB may rescind them only when presented with
new evidence or legal authority which establishes that the decision to prosecute was incorrect.
BR 2.6(e);
F Authorizing staff to negotiate and enter into a diversion agreement with a lawyer. Only
matters involving minor misconduct are eligible for diversion, and the misconduct must stem
from an apparent cause that is likely to be dealt with successfully through a remedial program.
As a condition of diversion, the lawyer must stipulate to a set of facts and agree that the stipulated
facts will be deemed true in the event the lawyer fails to comply with the diversion agreement
and a disciplinary trial later becomes necessary. If diversion is successfully completed, the
complaint is dismissed. BR 2.10; and
F Referring a seemingly impaired lawyer to the State Lawyers Assistance Committee

(SLAC). If there is probable cause that the impaired lawyer committed misconduct, the referral
to SLAC will be in addition to, not in lieu of, disciplinary action.
The SPRB also decides when it is appropriate to petition the Oregon Supreme Court for
immediate action against a lawyer due to: the potential for substantial continuing harm to the public
while a disciplinary proceeding is pending (BR 3.1); a lawyer’s mental incapacity (BR 3.2); a lawyer’s
criminal conviction (BR 3.4); or the imposition of discipline upon the lawyer in another state. BR 3.5.
Bar Prosecutions: Trial Level
Counsel. After formal charges are authorized by the SPRB, Disciplinary Counsel’s Office may,
but does not always, appoint volunteer trial counsel to work with DCO staff in preparation and trial of
the case. BR 2.1(a). Lawyers accused of misconduct also should obtain counsel. Several Oregon lawyers
have developed the defense of disciplinary matters as a practice area. The bar also maintains a list of
lawyers who have expressed an interest in providing pro bono advice to lawyers under investigation
or formal charge.
Pleadings. Disciplinary proceedings are initiated by a formal complaint, which is the charging
instrument. BR 4.1 and BR 12.1. The complaint is prepared by Disciplinary Counsel’s Office and is filed
with the bar’s disciplinary board clerk. BR 4.1(b). The SPRB may consolidate any number of authorized
charges against the same lawyer in one proceeding. The SPRB also may consolidate factually related
complaints against two or more lawyers for hearing before one trial panel. BR 4.1(d).
An accused lawyer has the opportunity to file an answer to the complaint. General denials are
not allowed. BR 4.3(d). Neither are counterclaims. In re Kluge, 332 Or 251, 258–59, 27 P3d 102 (2001).
Amendments to the formal complaint and answer are liberally allowed but time is given the
opposing party to prepare to meet new matters alleged. BR 4.4(b). Motion practice is limited to the
equivalent of a motion to make more definite and certain. BR 4.4(a).
Trial Panels. Members of the disciplinary board, appointed by the state supreme court,
sit in panels of three (two lawyers, one nonlawyer) and are appointed for each case by a regional
chairperson. BR 2.4; ORS 9.534. Challenges, one peremptory and an unlimited number for cause, may
be exercised against members of a trial panel. BR 2.4(g). The panel, with an appointed chairperson,
rules on all questions of procedure and evidence and is responsible for promptly bringing the matter to
hearing. Hearings are to take place within 63 to 182 days after the panel receives the pleadings from the
disciplinary board clerk, subject to extensions not to exceed 56 days in the aggregate. BR 2.4(h); BR 5.4.
Pre-hearing conferences are optional, held at the request of either the bar or an accused lawyer,
and are designed to narrow the issues for trial and to further explore the possibility of settlement. BR
4.6. The parties also may employ the services of an outside mediator to determine the potential for, or
assist the parties in negotiating, a settlement of issues in dispute. Mediation is voluntary; both parties
must agree to participate for a mediation to occur. BR 4.9.
Discovery. Discovery is limited to requests for admissions, requests for production and
depositions. BR 4.5(b). Disputed discovery issues are resolved by the trial panel chairperson. In
addition to their discoverability, disciplinary files and records are, subject to limited exceptions, open
to disclosure under the Oregon Public Records Law. ORS Ch. 192; BR 1.7(b); OSB Bylaw 18.103–18.104.
Sadler v. Oregon State Bar, 275 Or 279, 550 P2d 1218 (1976); State ex. rel. Frohnmayer v. Oregon State
Bar, 307 Or 304, 767 P2d 893 (1989); Kluge v. Oregon State Bar, 172 Or App 452, 19 P3d 938 (2001).
Hearings. In disciplinary hearings, evidence possessing “probative value commonly accepted
by reasonably prudent persons in the conduct of their affairs” is admissible. BR 5.1. This standard
differs from that in the Oregon Evidence Code, which does not apply to disciplinary proceedings. In re
Barber, 322 Or 194, 904 P2d 620 (1995).
The bar has the burden of proof under a “clear and convincing” standard (BR 5.2), which means
that the truth of the facts asserted is highly probable. In re Morrow, 297 Or 808, 688 P2d 820 (1984). The
accused lawyer is presumed innocent until proven otherwise. In re Jordan, 295 Or 142, 665 P2d 341
(1983).
Venue may be in the county in which the lawyer practices or resides, in which the offense is
alleged to have occurred, or elsewhere with the consent of the lawyer. ORS 9.534(5); BR 5.3(a). Subpoenas
are available to compel the attendance of witnesses. BR 5.3(b).
Due process rights afforded an accused lawyer include reasonable written notice of the charges,
a reasonable opportunity to defend against them, the right to retained counsel, the right to examine
and cross examine witnesses and the right to appear and testify. ORS 9.534(2). There is no constitutional
right to appointed counsel in lawyer disciplinary proceedings. In re Harris, 334 Or 353, 49 P3d 778
(2002).
Evidence relevant to sanction may be heard by the trial panel but may not be considered until
after the panel decides whether a violation was committed by the lawyer. Separate mitigation or
aggravation hearings regarding sanctions are permitted but rarely held. BR 5.7.
Occasionally, disciplinary matters go by default without participation by the accused lawyer. BR
5.8. Under those circumstances, a trial panel may deem the factual allegations of the formal complaint
to be true. In re Staar, 324 Or 283, 924 P2d 308 (1996). The panel then must determine whether the facts
deemed true constitute the rule violations alleged. In re Koch, 345 Or 444, 198 P3d 910 (2008). If so, the
panel moves on to consider the appropriate sanction.
After hearing and the settling of the transcript, the trial panel must render its written decision
within 28 days, subject to extensions. Dissenting opinions also may be filed. BR 2.4(i)(2).
Sanctions. At the direction of the Oregon Supreme Court, disciplinary board panels look to the
ABA Standards for Imposing Lawyer Sanctions and Oregon case law in determining dispositions. See
In re Leonhardt, 324 Or 498, 930 P2d 844 (1997). The ABA Standards examine four criteria: the duty
violated by the lawyer (owed to a client, the public, the legal system or the profession); the mental state
of the lawyer (intentional, knowing, negligent or strict liability); the extent of injury (actual, potential or
none); mitigating and aggravating factors (examples include prior disciplinary history, motive, number
of offenses, level of cooperation, restitution, experience in practice, character or reputation).
Disciplinary dispositions and sanctions recognized in Oregon, set forth in BR 6.1, include:
dismissal (two in 2012); public reprimand (17 in 2012); suspension from 30 days to five years (20 in 2012);
suspension stayed in whole or in part pending a term of probation (three in 2012); and disbarment (two
in 2012), which is permanent per BR 6.1(e). Restitution also may be required.
Dispositions without trial. Lawyers subject to disciplinary investigation or prosecution may
resign “Form B.” BR 9.1; BR 12.7. This resignation “under fire” is similar to disbarment in that lawyers
who resign Form B are not eligible for reinstatement. BR 9.4. Thirteen lawyers resigned Form B in 2012.
Cases also can be resolved through stipulations for discipline and no-contest pleas when there is
no dispute over material fact and the parties agree on an appropriate sanction. BR 3.6. These settlements
between a lawyer and the SPRB must be approved by the disciplinary board (for sanctions involving
a six-month suspension or less) or the Oregon Supreme Court (for greater sanctions). BR 3.6(e). If the
disciplinary board or the court rejects a stipulation or no-contest plea, the case proceeds to hearing.
Bar Prosecutions: Appellate Level
There is no automatic review of disciplinary proceedings by the Oregon Supreme Court. All trial
panel decisions are final unless either the bar or the accused lawyer seeks state supreme court review
within 60 days. If review is requested by either party, the court must review the case. The SPRB decides
for the bar whether to seek review. Disciplinary Counsel’s Office represents the bar on appeal.
Upon receipt of the record, the Oregon Supreme Court establishes a briefing schedule for the
parties. ORAP 11.25; BR 10.5. Oral argument follows. Review in the supreme court is de novo. ORS
9.536(3); BR 10.6. It is not uncommon for the court to disagree with trial panels on the facts, law or
sanctions. After decision, costs and disbursements in disciplinary matters are governed by BR 10.7 and
ORAP 13.05.
Summary
The legal profession in Oregon has taken seriously its commitment to enforcing ethics standards
and protecting the public with a discipline system that is nationally recognized for its openness,
nonlawyer input and streamlined framework. The system is supported by dozens of dedicated
volunteers and equally dedicated staff.
By the time you read this, I will have left my position as the bar’s disciplinary counsel, having
held the post since the fall of 1988. It has been a privilege to work with all the volunteers and staff, and
to serve the public and the legal profession over the years.
About the Author
Jeff Sapiro was OSB disciplinary counsel and director of regulatory services from 1989 to February
2013. A more complete description of Oregon’s discipline system is found in Chapter 16 of The Ethical
Oregon Lawyer, an OSB publication available to bar members through BarBooks on the OSB website.
The Oregon State Bar welcomes John S. Gleason as the new OSB disciplinary counsel and
director of regulatory services. He was formerly regulation counsel for the Colorado Supreme Court.
In February, he received the National Organization of Bar Counsel 2013 President’s Award, honoring
his many years of dedication and noteworthy contributions to the legal profession. A fuller profile of
Gleason will appear in an upcoming issue of the Bulletin.
Ethics opinions are published and updated on the bar’s website at http://www.osbar.org/
ethics/toc.html.
An archive of Bar Counsel articles is available at http://www.osbar.org/ethics/bulletinbarcounsel.
html.


Rule Seminal/Example Cases Recent Decisions
1.1 Competence: In re Obert, 352 Or 231, 282 P3d 825
(2012). Lawyer failed to follow judge’s
In re Eadie, 333 Or 42, 36 P3d 468 (2001). Determining whether a lawyer has provided instructions that would have granted
incompetent representation is a fact-specific inquiry. Lawyer was found incompetent for: his client a JNOV, then made matters
not being prepared for trial; failing to order transcripts or prepare expert witnesses;

worse by filing a defective appeal that
attempting to elicit testimony from witnesses who did not have any information; removed court’s jurisdiction.
repeatedly asking questions against court rulings; making numerous unfounded objections
during the trial; regularly injecting the issue of insurance into the case; and, moving for a In re Reciprocal Discipline of Anthony
new trial after accepting a satisfaction of judgment. Robert Lopez, 350 Or 192, 252 P3d 312
(2011). Lawyer settled a personal injury
In re Magar, 335 Or 306, 66 P3d 1014 (2003). Charge of incompetent representation must case for less than clients’ medical
b viewed in the broader context of the representation as a whole, rather than by focusing expenses, and unsuccessfully
on specific aspects of the representation. attempted to negotiate reductions in
those medical expenses. Lawyer failed
In re Gastineau, 317 Or 545, 857 P2d 136 (1993). “A review of this court’s cases shows that to resolve claims to the settlement
incompetence often is found where there is a lack of basic knowledge or preparation, or a proceeds for over 2 years.
combination of those factors.” Id. at 553. Lawyer was found incompetent in an
incorporation matter where he failed to review proposed articles of incorporation and paid
an improper amount for filing fees, causing the filing to be rejected and the client to miss a
business opportunity.
In re Gresham, 318 Or 162, 864 P2d 360 (1993). Lawyer was found incompetent in probate
matter where he lacked the necessary knowledge and skill to undertake a probate, failed to
comply with the statutory requirements and failed to close the estate in a timely fashion.
1.3 Diligence: In re Jackson, 347 Or 426, 223 P3d 387

(2009). Lawyer was not prepared for a
In re Sousa, 323 Or 137, 915 P2d 408 (1996). A lawyer is neglectful when he/she repeatedly settlement conference he had
fails to respond to client contacts, makes repeated errors, creates unnecessary delays, and requested, failed to send his calendar
fails to take any action on client matters for substantial periods of time. of available dates to an arbitrator,
failed to respond to messages from the
arbitrator’s office and failed to take
steps to pursue the arbitration after a
6–7
In re Koch, 345 Or 444, 198 P3d 910 (2008). Although one act of negligence is not sufficient second referral to arbitration by the
to violate RPC 1.3, either a course of neglectful conduct or an extended period of neglect is court.
sufficient.

In re Parker, 330 Or 541, 9 P3d 107 (2000). Lawyer guilty of neglect where he repeatedly
failed to communicate with client or respond to his client’s messages; failed to prepare for
trial; agreed to file court documents without consulting his clients; failed to actively pursue
cases; and, failed to file court documents that were required by settlement.
1.4 Communication: In re Groom, 350 Or 113, 249 P3d 976

(2011): The court stated that the
The duties stated in 1.4 were implied within DR 6-101(B). Since 1.4’s language was not following factors should be considered
specifically included in the former disciplinary rules, there is no direct seminal case until in determining whether attorney has
after 2007. kept a client reasonably informed
about the status of a matter: (1) the
In re Snyder, 348 Or 307, 232 P3d 952 (2010). Factors to consider in deciding whether a time that elapses between the event
violation of RPC 1.4 has occurred include, but are not limited to, the time that elapsed and the attorney’s communication of
between the lawyer's decision and the communication of that decision, the lawyer's failure the event to the client; (2) whether
to respond promptly to reasonable requests for information from the client, and the attorney fails to respond promptly to
foreseeable prejudice that resulted from the lawyer's delay. Lawyer kept from client requests for information from the
information that client needed to make informed decisions, including: current status of client; and (3) the foreseeable
case, communications with the adverse party, communications with client’s own insurance prejudice from the delay in the
company, and the strategy the lawyer used in settlement negotiations. communication.
1.5 Attorney Fees: In re Obert, 352 Or 231, 282 P3d 825

(2012). Lawyer took a flat fee for a
ORPC 1.5(a) states that “A lawyer shall not enter into an agreement for, charge or collect criminal matter. The client no longer
an illegal or clearly excessive fee or a clearly excessive amount for expenses.” Because this needed his services prior to Lawyer taking
rule is nearly identical to former DR 2-106(A), cases that interpreted former DR 2-106(A) any substantial step toward completing
are relevant to the interpretation of ORPC 1.5(a). work on the matter so client terminated
relationship and requested a refund of the
In In re Potts/Trammel/Hannon, 301 Or 57, 74–75, 718 P2d 1363 (1986), the court stated fee. Lawyer refused. Lawyer was found to
that it is not only a violation to collect an excessive fee, but also to attempt to collect an have collected a clearly excessive fee.
6–8
excessive fee. Thus, it would not be wise to for an attorney to send a very high bill to a See ORPC 1.5(c)(3) which states:
client, viewing it merely as an initial offer to settle a client’s debt. Id at 74. This is of course
in addition to the prohibition of entering into a agreement for an illegal or clearly excessive “A lawyer shall not enter into an
fee. arrangement for, charge or collect:

See In re Biggs, 318 Or 281, 864 P2d 1310 (1994) and In re Hedges, 313 Or 618, 836 P2d ....
119 (1992) for rulings on fees that are “earned upon receipt” and/or “non-refundable.”
These cases held that a lawyer may not charge or collect a fee denominated as "earned on (3) a fee denominated as "earned on
receipt" or "nonrefundable" unless it is pursuant to a prior written fee agreement signed by receipt," "nonrefundable" or in similar
the client which explains that the funds will not be deposited into the lawyer trust account. terms unless it is pursuant to a written
In addition, despite the “nonrefundable” title, upon termination the client may be entitled agreement signed by the client which
to a refund of all or part of the fee if the services for which the fee was paid are not explains that:
completed. This holding was essentially codified with ORPC 1.5(c).
(i) the funds will not be deposited into
In re Thomas, 294 Or 505, 659 P2d 960 (1983). Retention of an unearned fee constitutes the lawyer trust account, and
charging an excessive fee.
(ii) the client may discharge the lawyer
In re Gastineau, 317 Or 545, 857 P2d 136 (1993). A lawyer collects a “clearly excessive fee” at any time and in that event may be
in violation of the rules when a lawyer collects a flat, nonrefundable fee, fails to complete entitled to a refund of all or part of the
the work for which the fee was paid, and fails to refund the unearned portion of the fee, fee if the services for which the fee was
The fee must not be “clearly excessive” at the time the parties enter into the fee paid are not completed.”
agreement, at the time that the firm charges the fee, and at the time the firm collects the
fee.
In re Obert, 352 Or 231, 282 P3d 825 (2010). A fee could be reasonable at the time the
parties enter into the fee agreement, but then be “clearly excessive” when the lawyer
collects the fee.
In re Balocca, 342 Or 279, 151 P3d 154 (2007). In deciding how much of a flat fee to refund
the client, lawyer may not compute the amount of fees earned based on hours expended
because doing so would deny the client the benefit of the flat-fee arrangement.
6–9
1.6 Confidentiality:
No major cases since the adoption of RPC 1.6. However, several recent formal ethics opinions
touch on the rule. Those include:

OSB Formal Ethics Op No. 2011-188.– Lawyer may use third-party vendor to store client files
and documents in cloud format provided lawyer takes reasonable steps to ensure that the
storage company will reliably secure client data and keep information confidential. Attorney
may need to evaluate the policies and procedures used by the vendor as technology evolves.
OSB Formal Ethics Op No. 2011-187. The duty to protect information related to the
representation of a client requires lawyer to take reasonable care to prevent the inadvertent
disclosure of metadata embedded in electronic documents disclosed to others, including
maintaining a basic understanding of the technology or utilizing adequate technology
support.
OSB Formal Ethics Op No. 2011-186. Lawyer in an adversary proceeding who receives from a
third party documents that may have been stolen or otherwise taken without authority from
the opposing party is not required to notify or return the documents to the opposing party.
To do so could violate the duty of confidentiality owed to a client under RPC 1.6. Lawyer is
cautioned, however, that substantive provisions of law beyond ethics rules, such as criminal
statutes that address accepting evidence of a crime or evidence tampering and the law of
privilege, must be taken into account.
OSB Formal Ethics Op No. 2011-185. In a motion to withdraw from representation, a lawyer
may not disclose information protected under RPC 1.6, including information that a client
won’t take lawyer’s advice, won’t cooperate with lawyer, hasn’t timely paid his attorney fee,
or has not complied with discovery requests.
OSB Formal Ethics Op No. 2011-184. Lawyer who seeks guidance or assistance from a lawyer
outside of consulting lawyer’s firm, whether by personal consultation or electronic listserv
inquiry, must safeguard confidential client information and avoid conflicts of interest. In the
absence of a confidentiality agreement between consulting lawyer and consulted lawyer,
6–10
consulted lawyer does not assume any obligation to consulting lawyer’s client and is free to
divulge shared information or represent an adverse party.
Thanks to the definition provided in RPC 1.0(f), rulings under former DR 4-101 are still

considered good law. Here are some cases looking at DR 4-101:
State v. Keenan/Waller, 307 Or 515, 771 P2d 244 (1989): Thorough discussion of the
interplay between ethical rules on confidentiality and the attorney/client privilege.
In re Huffman, 328 Or 567, 983 P2d 534 (1999). Prior lawyer gave new lawyer client’s
confidential information without client’s consent.
In re Paulson, 341 Or 542, 145 P3d 171 (2006). Lawyer revealed secrets of a former client,
and knowingly used that information to his advantage.
In re Phillips, 338 Or 125, 107 P3d 615 (2005). Lawyer disclosed his clients’ names,
addresses and the fact that they had living trusts to insurance agents so that the agents
could sell the clients insurance products. Court determined that the information was
“information gained in a current or former professional relationship, the disclosure of
which would be likely to be detrimental to the client” because the disclosure was likely to
result in the agents selling a large number of the clients unnecessary insurance products at
substantial cost.
1.7 Conflict of Interest; Current Client: No Recent Supreme Court Cases, but
the following Formal Ethics Opinions
No cases specifically comparing case law/analysis from 1.7 to old DRs. give guidance:
Identifying the Client Self-interest conflicts

OSB Formal Ethics Op No. 2009-182.
In re Weidner, 310 Or 757, 801 P2d 828 (1990). Whether a lawyer-client relationship exists Current Client’s Filing of Bar Complaint;
depends on the “reasonable expectations” of the putative client. Ask, does the putative Withdrawal
client subjectively believe that the lawyer is representing the client and is the client’s
subject belief reasonable under the circumstances.
6–11
Self-Interest Conflicts OSB Formal Ethics Op No. 2006-176.
Lawyer Functioning in Multiple Roles in
In re Tonkin, 292 Or 660, 642 P2d 660 (1982). Case involved analysis under former DR 5-101(A) Client’s Real Estate Transaction
and 5-104, but provides excellent analysis of when a lawyer’s personal financial interest results

in a self-interest conflict. Important to recognize that Rule 1.8(c) was created to reverse the
result in this case on its particular facts, but would not diminish the analysis given by the Court. Sexual Relations with a Client
In re Knappenberger, 337 Or 15, 90 P3d 614 (2004). Court determined that a lawyer’s OSB Formal Ethics Op No. 2005-133.
Financing Arrangement
malpractice or potential malpractice does not automatically create a self-interest conflict, and
provided analytical framework for determining when a self-interest conflict would arise based
on a lawyer’s error or potential error in a handling a client’s case.
Charity and Donor
Multiple-Client Conflicts OSB Formal Ethics Op No. 2005-111.
Representing Bankruptcy Client who
In re Johnson, 300 Or 52, 707 P2d 573 (1985). Court identified three categories of conflicts owes Lawyer Substantial Fees
(actual, likely and unlikely) to determine when a lawyers judgment may be adversely affected.
While 1.7 does away with these three categories, it is generally believed that if a conflict could OSB Formal Ethics Op No. 2005-94.
be waived under DR 5-105, then it can be waived under 1.7(a) (1) and (2). Lawyer’s Spouse as Real Estate Broker
In re Obert, 336 Or 640, 89 P3d 1173 (2004). Simultaneous representation of couple in step- OSB Formal Ethics Op No. 2005-61.
parent adoption and the birth father in defense of unrelated criminal charges presented Malpractice, Failure to Timely File,
conflict of interest. Settlement Between Lawyer and Client
In re McKee, 316 Or 114, 849 P2d 509 (1993). Representing both husband and wife as co- OSB Formal Ethics Op No. 2005-10.
petitioners in divorce constitutes conflict for which at minimum consent after full disclosure is Lawyer has Other Business
required. Concurring opinion suggests that conflict usually not waivable.
Multiple-client conflicts
In re Jeffery, 321 Or 360, 898 P2d 752 (1995). An actual conflict existed in lawyer’s
Issue Conflicts
representation of two criminal defendants Lawyer of being co-conspirators in drug transaction.

In re Phelps, 306 Or 508, 760 P2d 1331 (1988). Nonwaivable conflict to represent two brothers Representing Driver and Passengers in
in dissolution of partnership where disagreement over terms of dissolution. Personal Injury/Property Damage Claims
6–12
Representation of buyer and seller or borrower and lender in same transaction is actual, OSB Formal Ethics Op No. 2005-157.
nonwaivable conflict. See, e.g., In re Carey, 307 Or 315, 767 P2d 438 (1989) and In re Submission of Bills to Insurer’s Third-
Robertson, 290 Or 639, 624 P2d 603 (1981). Party Audit Service

Formation of Corporation or Partnership

Fiduciaries

Charity and Donor

Identifying the Client: Corporations and
Partnerships

Creditor of Seller vs. Buyer

Representing Debtor and One or More
Creditors in Bankruptcy

Issuers and Underwriters of Bonds

Representation of Trade Association and
Its Members
6–13
1.9 Duties to Former Clients: In re Hostetter, 348 Or 574, 238 P3d 13
(2010). Former client conflict of
In re Brandsness, 299 Or 420, 702 P2d 1098 (1985). Former client conflicts are primarily interest rules apply even when the
concerned about matter specific and information conflicts. This is an excellent case former client is deceased. Lawyer’s
discussing both types of conflicts.

representation of lender in asserting
In re Knappenberger, 338 Or 341, 108 P3d 1161 (2005). Lawyer was found to have a conflict probate claim against borrower’s
with a former client, even though the former “client” never retained Lawyer and merely estate was a conflict because lawyer
consulted with Lawyer about potential representation. Lawyer should have known of the had represented the borrower in the
conflict, but did not because lawyer did not have and use a reliable conflict check system. underlying loan transaction prior to his
death. Therefore, lawyer violated the
In re Balocca, 342 Or 279, 151 P3d 154 (2007). Lawyer was found to have a former client former client conflict rule.
conflict when he represented a mother against a father in a paternity suit. Lawyer had
previously represented father in a bankruptcy. Good discussion on how financial See OSB Formal Ethics Op No. 2005-11
information can create information conflicts in subsequent unrelated matters. for a thorough discussion of rule 1.9.
In re Campbell, 345 Or 670, 202 P3d 871 (2009). Lawyer represented bankruptcy trustee in
contesting a claim made by secured creditor against the estate. Lawyer withdrew from
representation because he disagreed with the trustee’s proposed settlement and
thereafter represented other secured creditors to object to the settlement.
1.15-1 Safekeeping Client Property: In re Obert, 352 Or 231, 282 P3d 825
(2012). Lawyer deposited credit card
In re Miller, 303 Or 253, 735 P2d 591 (1987). Monies paid in advance must be placed in a payments directly into his business
lawyer trust account, to be withdrawn only as fees are earned or expenses are incurred. account without a written agreement
allowing him to do so and before the
In re Eads, 303 Or 111, 734 P2d 340 (1985). Fees identified as “earned upon receipt” must fee was earned.
NOT be place in trust, and must be placed in attorney’s business account so to avoid
comingling of funds. In re Lopez, 350 Or 192, 252 P3d 312
(2011). After settling personal injury
In re Levie, 342 Or 462, 154 P3d 113 (2007). Lawyer violated 1.15-1 by treating trust cases, lawyer failed to distribute
account as a personal checking account. proceeds to his clients and to pay
medical liens for substantial periods of
time.
6–14
In re Biggs, 318 Or 281, 864 P2d 1310 (1994). “Without a clear written agreement between In re Snyder, 348 Or 307, 232 P3d 952
a lawyer and a client that fees paid in advance constitute a nonrefundable retainer earned (2010). Lawyer did not return client’s
on receipt, such funds must be considered client property” and must be deposited in the file materials, including medical
lawyer trust account. records, despite numerous requests

from the client.
See also In re Fadeley, 342 Or 403, 153 P3d 682 (2007) and In re Balocca, 342 Or 279, 151
P3d 154 (2007)(noting also that the burden is upon the Lawyer to prove the existence of In re Peterson, 348 Or 325, 232 P3d 940
such a written fee agreement). (2010). The poor trust account record
keeping of the lawyer led to an
In re Skagen, 342 Or 183, 149 P3d 1171 (2006). Lawyer was disciplined for violation of this overdraft on his account.
rule by failing to reconcile his monthly trust account statements and failing to maintain a
trust account ledger to keep track of funds. Additionally, trust accounts must be identified See OSB Formal Ethics Op No. 2006-177
as a “lawyer trust account.” for how to treat credit card payments.
See OSB Formal Ethics Op No. 2005-151

for fixed/flat fee considerations.

for when funds can be withdrawn from
an IOLTA trust account.

for situations where third parties have
claims against funds held in trust (i.e.
medical provider liens).
1.15-2 IOLTA Trust Accounts:
In re Skagen, 342 Or 183, 149 P3d 1171 (2006). Lawyer failed to maintain an interest
bearing trust account as required by RPC 1.15-2.
6–15
1.18 Duties to Prospective Clients:
In re Knappenberger, 338 Or 341, 108 P3d 1161 (2005): Lawyer was found to have a conflict
with a former client , even though the former “client” was merely a potential client who
never hired the Lawyer to represent him.

3.1 Meritorious (Frivolous) Claims: In re Obert, 352 Or 231, 282 P3d 825
(2012). Lawyer filed a frivolous notice
Dimeo v. Gesik, 197 Or App 560, 106 P3d 697 (2005). While not addressing 3.1 specifically, of appeal, when he filed a second,
the court did state that an attorney’s duty to not bring meritless claims is a continuing one untimely notice of appeal, intending to
throughout the course of litigation. Where a claim may be reasonable at the start of argue that a criminal statute that
litigation, it may become unreasonable through the discovery of new facts or changes in permitted the late filing of a notice of
the law. appeal should apply to his client’s civil
case.
In re Smith, 348 Or 535, 236 P3d 137 (2010). Client had disputes with her employer, a
medical marijuana clinic. Lawyer advised client that, because the nonprofit was See OSB Formal Ethics Op No 2005-21.
administratively dissolved, the client had a right to enter the premises and attempt to take Lawyer may file complaint against
control of the operations of the clinic. Court found that lawyer knew this advice was defendant notwithstanding Lawyer’s
frivolous through circumstantial evidence, including that lawyer had practiced for 40 years. knowledge of valid affirmative defense.
3.3 Candor toward the Tribunal: In re Paulson, 346 Or 676, 216 P3d 859
(2009). Lawyer was about to serve a
In re Kluge, 335 Or 326, 66 P3d 492 (2003). Lawyer filed motion to disqualify judge after disciplinary suspension. In motions to
judge had already made a substantive ruling on the case, and failed to tell motions judge of abate and postpone several client
this ruling. Furthermore, lawyer did not notify judge of his intention to disqualify judge matters, lawyer falsely told court that
he had appealed his disciplinary case.
In re Worth, 337 Or 167, 92 P3d 721 (2003). Lawyer made misrepresentations to the court
as to why he had not pushed client’s case along or complied with the court’s order to set a In re Jackson, 347 Or 426, 223 P3d 387
date certain for arbitration. (2009). Lawyer falsely represented to
the court that burglaries at his office

In re Lawrence, 337 Or 450, 98 P3d 366 (2004). Lawyer lied to judge when she represented were the reason he was unable to
that she had not given legal advice to client’s victim and concealed information about how proceed with a case in a timely
much contact she had with the victim. manner.
6–16
for a discussion of lawyer’s obligations
when client intends to defraud court).

for a discussion of lawyer’s obligation
when (client who commits perjury).
3.4 Fairness to Opposing Party and Counsel: See OSB Formal Ethics Op No. 2005-113
for a discussion on threatening criminal
RPC 3.4(c)—Disobeying a Rule of Tribunal prosecution in Oregon (Rule 3.4(g)).
In re Chase, 339 Or 452, 121 P3d 1160 (2005). Lawyer violated former disciplinary rule
when he failed to comply with a child support order related to his own child, and was
for a discussion on how Oregon’s RPC
found in contempt.
may be influenced by Oregon’s Rules of
In re Coyner, 342 Or 104, 149 P3d 1118 (2006). Lawyer was charged with criminal mischief Civil Procedure when it comes to
and resisting arrest. Lawyer was later found in contempt of court for consuming alcohol in contacting adverse witnesses and expert
violation of her conditional release, violating DR 7-106(A). witnesses.
In re Levie, 342 Or 462, 154 P3d 113 (2007). Lawyer failed to comply with arbitrator’s order
to deliver all of client’s sculptures to a specific gallery so that they could be sold in violation
of DR 7-106(A).
RPC 3.4(e)—Alluding to inadmissible evidence
In re Eadie, 333 Or 42, 36 P2d 468 (2001). Lawyer violated rule by discussing existence of
insurance during voir dire in personal injury action, over court’s in limine rulings.
3.5 Impartiality and Decorum of the Tribunal: See OSB Formal Ethics Op No. 2005-83
for a discussion of the difference

In re Kluge, 335 Or 326, 66 P3d 492 (2003). Lawyer was sanctioned for filing a motion to between private practice lawyer and
disqualify judge without providing notice to opposing counsel or judge. Interesting government lawyer’s ability to
discussion on what constitutes communication that is “on the merits.” communicate ex parte.
6–17
In re Schenck, 320 Or 94, 879 O2d 863 (1994). Lawyer disciplined for sending letter to trial See OSB Formal Ethics Op No 2005-134
judge, without copy to adverse counsel, criticizing the court’s decision to delay the trial. A regarding county attorney’s authority to
communication may be on a matter of procedure and still relate to the “merits.” communicate with planning division.

In re Smith, 295 Or 755, 670 P2d 1018 (1983). Motion for ex parte order giving client rights
she already had under the decree did not affect any legal right or duty of parties so was not
“on the merits.”
In re Dugger, 334 Or 602, 54 P3d 595 (2002). Lawyer’s mistaken belief that he was not
required to provide notice to opposing counsel not a defense because culpable mental
state not an element under the rule.
In re Gillis, 297 Or 493, 686 P2d 358 (1984). Ex parte contact did not violate former DR 7-
110(B) where lawyer, after conducting research on the issue, had a good faith belief that
the contact was authorized by law and the law was unsettled.
4.1 Truthfulness in Statements to Others: In re Smith, 348 Or 535, 236 P3d 137
(2010). Lawyer was present during his
In re Levie, 342 Or 462, 154 P3d 113 (2007). Lawyer misrepresented to opposing counsel client’s attempted takeover of a
that all of client’s sculptures had been handed over to a gallery for sale, when in fact three medical marijuana clinic. Lawyer falsely
of client’s sculptures were displayed in lawyer’s own office. Lawyer also falsely stated that asserted to the police and others that
the sculptures were unencumbered by any security interests. his client had written authorization
from a governmental entity to take
control of the clinic.
4.2 Communication with Person Represented by Counsel: In re Newell, 348 Or 396, 234 P3d 967
(2010). Lawyer served deposition
In re Knappenberger, 338 Or 341, 108 P3d 1161 (2005). Lawyer confronted two employees subpoena on a witness the night before
who had just served lawyer with an employment claim that showed the two employees the deposition date. Witness was not
were represented parties. Rule applies when lawyer representing his own interests and represented in the civil matter, but was
lawyer’s emotional state during the communications was not a defense. represented in a related criminal
matter. While the civil and criminal
cases were not the same matters, they
6–18
In re Schwabe, 242 Or 169, 408 P2d 922 (1965). When lawyer is in doubt about whether a involved the same subject. Lawyer was
lawyer is still representing opposing party, lawyer should contact the opposing lawyer, not sanctioned for questioning the witness
the opposing party, to verify whether the representation continues. at the deposition on a subject on which
attorney knew the witness was

In re Hedrick, 312 Or 442, 822 P2d 1187 (1991). Sending the original of a letter to a person represented by counsel. The Oregon
represented by counsel, with a copy to the opposing counsel, does not comply with the Rules of Civil Procedure did not provide
rule. an “authorized by law” exception for
such communication.
In re Schenck, 320 Or 94, 879 P2d 863 (1994). Although the rules of civil procedure allow a
request for production to be served with the summons and compliant, separate mailing to OSB Formal Ethics Op No. 2005-81.
represented party was improper communication and resulted in discipline of lawyer. Information Related to the
Authorized by law exception is narrowly construed. Representation of a Client, Second
Opinions

and OSB Formal Ethics Op No. 2005-
152 for a discussion about when a
business or government entity is
“deemed” to be represented for
purposes of this rule.
4.3 Dealing with Unrepresented Persons:

Communicating with Unrepresented
In re Lawrence, 337 Or 450, 98 P3d 366 (2004). Lawyer represented client charged with Persons
domestic violence. Lawyer advised and assisted victim of client in preparing an affidavit in
which victim asked to have domestic violence charges dropped. OSB Formal Ethics Op No. 2005-42.
Prospective Defendant

Defense Lawyer Suggesting Civil
Compromise
6–19
4.4 Respect for the Rights of Third Persons; Inadvertently Sent Documents:
No seminal cases, but two recent formal ethics opinions shine light on how the obligations
stated in this rule are being impacted by modern technology:

OSB Formal Ethics Op No. 2011-187. Lawyer who receives from an opposing party a document
with embedded metadata may use the metadata and is not required to notify the sender
unless attorney knows or reasonably should know that the metadata was inadvertently
included in the document. In such a case, lawyer would be required to notify the sender but is
not required to return the document.
OSB Formal Ethics Op No. 2011-186. RPC 4.4(b) does not apply to documents lawyer receives
from a third party, even if such documents were taken without authority from the opposing
party. However, this might cause a balancing act between RPC 1.6 and substantive provisions
of criminal statutes that address accepting evidence of a crime or evidence tampering and the
law of privilege.
5.4 Professional Independence of a Lawyer/Referral Services: See OSB Formal Ethics Op No. 2007-180
for an analysis of the rules that impact
In re Griffith, 304 Or 575, 611, 748 P2d 86 (1987). RPC 5.4(a) (previously DR 3-102) referral services and internet
prohibits a lawyer from paying a third party who disseminates information (advertises) advertising. Specifically Rules of
about the lawyer’s services based on the number of referrals, retained clients, or revenue Professional Conduct 5.4(a), 7.1(a),
generated from the advertisements. However, paying a fixed rate (monthly or annually) 7.1(d), 7.2(a), 7.2(b); and Oregon
that is not related to any amount of work derived from the third party’s directory listing or Revised Statutes 9.500, 9.505 and
advertisement would not be 5.4(a). 9.510.
5.5 Unauthorized Practice of Law/Multi-Jurisdictional Practice:
See OSB Formal Ethics Op No. 2005-103. Discusses the rules that impact multi-state law
firms and a lawyer’s ability to refer a client to an out-of-state lawyer, so long as the
referring party does not imply that the out-of-state lawyer is a member of the Oregon State
Bar unless this is true. It discusses the implications of RPC 5.5(c), 5.5(d), 7.1(a) and 7.5(f).
6–20
7.1 Communication Concerning a Lawyer’s Services (Advertisements): In re Lopez, 350 Or 192, 252 P3d 312
(2011). Lawyer advertised that persons
In re Magar, 337 Or 548, 108 P3d 1161 (2004). Lawyer filed pleadings and sent letters to in an auto accident had the right to
opposing counsel when he was inactive member of the bar. receive at least $15,000. Court ruled

that this created a misleading
In re Sussman and Tanner, 241 Or 246, 405 P2d 355 (1965). Use of the term “associates” on impression concerning the results that
letterhead when there was no relationship among the attorneys listed thereon, except as attorney could obtain for prospective
office sharers, was misleading. clients.
OSB Formal Ethics Op No. 2005-109. Opinion on Letterhead with Out-of-State Law Firm OSB Formal Ethics Op No. 2005-169.
listed as “Associate Office.” Oregon firms can “associate” with out-of-state firms. These Firm Names - Retired Partner Mediator
associate offices would be akin to an individual being “Of Counsel” for a firm. If such a
relationship exists, then an Oregon firm could list the out-of-state office as an “Associated OSB Formal Ethics Op No. 2005-108.
Office.” The Opinion provides analysis of how RPC 7.1 and 7.5 apply to this type of Dual Professions, Yellow Pages
relationship. Advertising

Disclosure of Entity Status

Improper Use of Titles

Office Sharing with Separate Practices
7.2 Advertising:
The following Formal Ethics Opinions give comprehensive guidance:

See OSB Formal Ethics Op No. 2007-180. Discussing rules 7.2(a) and 7.2(b) and how they
relate to other applicable rules and statutes.
OSB Formal Ethics Op No. 2005-175 – Lawyer membership in Business Referral Clubs
6–21
OSB Formal Ethics Op No. 2005-168 – Lawyer Owned Referral Service
OSB Formal Ethics Op No. 2005-115 – UPL: Third Party Influence

OSB Formal Ethics Op No. 2005-112 – Participation in Multi-Professional Services Program
OSB Formal Ethics Op No. 2005-106 – Purchase of Tax Prep Business or Law Practice
OSB Formal Ethics Op No. 2005-79 – Pre-paid Legal Services Plan for Private Org (Church)
OSB Formal Ethics Op No. 2005-73 – Acceptance of Referrals
OSB Formal Ethics Op No. 2005-58 – Publicizing Lawyer’s Relationship to Ind. Business
OSB Formal Ethics Op No. 2005-51 – Lawyer Membership in Trade Association
OSB Formal Ethics Op No. 2005-3 – Disseminating Information through Media/Speeches
OSB Formal Ethics Op No. 2005-2 – Cross-Referrals/Office Sharing with Non-Lawyer
8.1 Bar admission and disciplinary matters: In Paulson, the court affirmed a trial
panel’s determination that a lawyer
In re Worth, 336 Or 256, 82 P3d 605 (2003). A lawyer is required to make a timely, full and violated RPC 8.1(a)(2) where he
truthful response to a request for information in a disciplinary matter. intentionally gave as little information
as possible while attempting to
In re Paulson, 346 Or 676, 689-690, 216 P3d 859 (2009), adhered to as modified on preserve his ability to argue that he
reconsideration, 347 Or 529, 225 P3d 41 (2010). The duty to provide a response exists was attempting to be cooperative and
regardless of whether the underlying complaint is found to lack merit. responsive.
Interaction with RPC 1.6(b): While RPC 8.1(a) does not require disclosure of information In re Obert, 352 Or 231, 282 P3d 825
otherwise protected by RPC 1.6, a lawyer is permitted under RPC 1.6(b)(4) to reveal (2012). Reaffirms the court’s
information to the extent reasonably necessary to respond to allegations in any proceeding expectation of timely, full and truthful
concerning the lawyer’s representation of the client. cooperation, notwithstanding
6–22
differences in language between
RPC 8.1(a) and former DR 1-103(C).
8.2 Statements concerning qualifications or integrity of an adjudicatory officer or candidate OSB Formal Ethics Op No. 2005-64.

and lawyer as candidate for judicial office Lawyer may express opinions
concerning judge’s compentend as long
as not knowingly false statements of
fact.
OSB Formal Ethics Op No. 2005-38 and

No. 2005-36. OSB Formal Ethics Op No.
38 regarding campaigning on behalf of
judicial candidate and OSB Formal
Ethics Op No. 2005-36 regarding lawyer
being a candidate for judicial office.
8.3 Reporting professional misconduct: See OSB Formal Ethics Op. 2005-95 for
explanation of rule.
(a) Where lawyer knows that another lawyer has committed a violation of the RPCs that
raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects.
(b) Where lawyer knows a judge has committed a violation of applicable rules of judicial
conduct that raises a substantial question as to the judge’s fitness for office.
(c) The rule does not require a lawyer to disclose information protected by RPC 1.6.
ORS 9.537(1) “Any person who has made a complaint to the bar concerning the conduct of
an attorney, or who has given information or testimony in or relative to a proposed or
pending admission, reinstatement or disciplinary proceeding shall be absolutely immune

from civil liability for any such acts.” The supreme court disciplined a lawyer in In re Adams,
293 Or 727, 652 P2d 787 (1982) for filing a counterclaim against a client for having
complained to the bar.
6–23
8.4(a)(1) Assisting another to violate RPCs or violating them through acts of another:
In re Jones, 308 Or 306, 779 P2d 1016 (1989). Lawyer disciplined for permitting a
nonlawyer use his name as lawyer on papers she filed in her dissolution processing
operation.

OSB Formal Ethics Op No.. 2007-178. Managers of indigent defense organizations may be
responsible for misconduct of subordinates if they induce the misconduct by knowingly
contracting for an excessive caseload.
OSB Formal Ethics Op No. 2005-115. Lawyer may not represent customers as local counsel
for a corporation that is engaged in the unauthorized practice of law.
OSB Formal Ethics Op No. 2005-47. Defense counsel may not offer or agree to settle
litigation on condition that plaintiff’s counsel never sue defendant again.
OSB Formal Ethics Op No. 2005-106 and 2005-10. Lawyers may not engage in solicitation
violations through others.
8.4(a)(2) Criminal conduct that reflects adversely on a lawyer’s fitness as a lawyer: In re Strickland, 339 Or 595, 601-02,
124 P3d 1225 (2005). Conduct in
In re White, 311 Or 573, 589, 815 P2d 1257 (1991). A criminal act reflects adversely on a violation of ORS 165.570 (improper use
lawyer’s fitness to practice only where there is a rational connection between the conduct of emergency reporting system) found
and the lawyer’s fitness. The factors to be considered in determining whether a rational to reflect adversely on a lawyer’s
connection exists include the lawyer’s mental state, the extent to which the act fitness as a lawyer.
demonstrates disrespect for law or law enforcement, the presence or absence of a victim,
the extent of actual or potential injury, and the presence or absence of a pattern of In re Smith, 348 Or 535, 553, 236 P3d
criminal conduct. 137, 147 (2010). Where lawyer
engaged in criminal trespass in the
RPC 8.4(a)(2) focuses on the act, not on whether there has been a conviction. second degree as part of his
representation of a client, that conduct
ORS 9.527(2) makes a lawyer subject to discipline for a conviction in any jurisdiction of an reflected adversely on his fitness as a
offense which is a misdemeanor involving moral turpitude, a felony under Oregon law, or a lawyer.
6–24
federal crime punishable by imprisonment or death. An act of moral turpitude is an “act of
baseness, vileness or depravity in the private and social duties which a man owes to his
fellow man, or to society in general, contrary to the accepted and customary rule of right
and duty between man and man.” Ex parte Mason, 29 Or 21, 43 P 651 (1896). Moral

turpitude includes crimes involving fraud, deceit, dishonesty, or illegal activity undertaken
for personal gain. In re Nuss, 335 Or 368, 376, 67 P3d 386 (2003).
8.4(a)(3) Conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely In re Marandas, 351 Or 521, 270 P3d
on a lawyer’s fitness to practice law: 231 (2012). Where there was some
plausible basis for a lawyer’s assertions,
In re Obert, 336 Or 640, 648-649, 89 P3d 1173 (2004). Dishonesty, fraud, deceit, and and even if the assertions were
misrepresentation are not identical concepts. “Fraud” and “deceit” require, among other knowingly false, there was no evidence
things, a false representation to another, with the intent that the other act upon the false that they had or could have had any
representation to his or her damage. “Misrepresentation” need not involve an improper effect on any decision by the court or
motive. It is committed when a lawyer knowingly makes a representation that is false and any party, the bar did not establish
material in the sense that it could significantly influence the recipient’s decision-making misrepresentation in violation of RPC
process. A misrepresentation may be false by omission as well as affirmatively false. 8.4(a)(3). However, the court also
opined that if a lawyer is found to have
In Obert, a lawyer who had assured his client that appellate briefing was ahead of schedule asserted a position that is merely
found out that he had not timely filed notice of appeal. For months after the case was “plausible” for a clearly impermissible
dismissed, the lawyer shunned notifying his client that the appeal was dismissed. The court purpose, the outcome might be
found that by doing so, the lawyer engaged in misrepresentation by omission. different.
In re Carpenter, 337 Or 226, 234, 95 P3d 203 (2004). Conduct involving dishonesty is
conduct that indicates a disposition to lie, cheat, or defraud; untrustworthiness; or a lack of
integrity. To constitute professional misconduct, a lawyer's knowing or intentional conduct
must show that the lawyer lacks those characteristics of trustworthiness and integrity that
are essential to the practice of law.
In Carpenter, the court found a lawyer engaged in dishonest conduct where he posed as
another person on a social media site and made harmful statements as if they case from
that person, without regard to whether the statements were true or not.
6–25
8.4(a)(4) Conduct prejudicial to the administration of justice: In re Jackson, 347 Or 426, 437, 223 P3d
387, 394 (2009). Lawyer engaged in
In re Haws, 310 Or 741, 746-48, 801 P2d 818, 822-24 (1990): The rule is violated when a conduct prejudicial to the
lawyer (1) engages in “conduct” by improperly acting or failing to act; (2) during the course administration of justice where he
of a judicial proceeding or a proceeding with the trappings of a judicial proceeding; and (3)

failed to respond to a court's order to
the conduct had or could have had a prejudicial effect upon the administration of justice. schedule arbitration and an arbitrator's
The “administration of justice” includes both the procedural functioning of the proceeding attempts to secure his compliance. The
and the substantive interests of parties to the proceeding. “Prejudice” may arise from court found that, not only did the
several acts that cause some harm or a single act that causes substantial harm to the failure to respond unnecessarily
administration of justice. expend the time of the arbitrator, it
undercut the essential purpose of the
RPC 8.4(a)(5) prohibits a lawyer from claiming an ability to improperly influence a pre-trial proceedings. Instead of
government agency or official narrowing the issues for trial, the court
spent its time trying to understand
RPC 8.4(a)(6) prohibits knowingly assisting another to violate rules of judicial conduct what had happened to derail the
proceeding and how it could get the
case back on track.
In re Lawrence, 350 Or 480, 256 P3d

1070 (2011). Lawyer did not violate the
rule when he released a partial
transcript of a juvenile detention
hearing to the media without the trial
court’s consent. Even if the applicable
statute required the court’s consent,
the bar failed to show the requisite
prejudice because the media had been
allowed to attend the hearing and had
reported on the events and testimony,
and there was no evidence the release

of the transcript harmed the
substantive rights of the parties, the
victims or the state.
6–26
8.4(b) Lawyers are permitted to supervise lawful covert activity in the investigation of violations See OSB Formal Ethics Op No. 2005-173
of civil or criminal law or constitutional rights, provided their conduct is otherwise in for an explanation of the rule.
compliance with the RPCs.

This rule has no counterpart in the Model Rules.
8.5 Disciplinary Authority; Choice of Law:
(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the
disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A
lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this
jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction.
A lawyer may be subject to the disciplinary authority of both this jurisdiction and another
jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the Rules
of Professional Conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of
the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide
otherwise;
(2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct
occurred, or, if the predominant effect of the conduct is in a different jurisdiction,
the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be
subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in
which the lawyer reasonably believes the predominant effect of the lawyer's
conduct will occur.
Bar Rule of Procedure (BR) 1.4(a) specifically provides that the Supreme Court’s
jurisdiction over a lawyer’s conduct continues whether or not the lawyer retains
authority to practice law in Oregon and regardless of where the lawyer resides.
6–27
RESOURCES on ETHICS for Oregon Lawyers:
1. Under the “For Oregon Lawyers” link, you will also find “Legal Ethics Home” link which has all the ethics information
provided by the Bar in one searchable location. Under the “Rules Regulations and Policies” link you can find current
copies of the Oregon Rules of Professional Conduct, Bar Rules of Procedure, Statement of Professionalism, and the

former Code of Professional Responsibility;
2. On your Member Home Page is a link to “Barbooks” where you can find OSB CLE and Bar Publications; including the
Disciplinary Board Reporter (1998 – 2012), The Ethical Oregon Lawyer (Oregon CLE 2006), and Oregon Formal Ethics
Opinions (Oregon State Bar 2005 & Supp 2011);
3. The Oregon State Bar Bulletin has a “Bar Counsel” Column every publication which contains views and trends on “hot
button” issues in our profession; and
4. Oregon State Bar - General Counsel’s Office, including the Client Assistance Office, is happy to answer questions
regarding the Oregon Rules of Professional Conduct and give informal ethics advice regarding your concerns.
Phone number is 503-620-0222 or 800-452-8260 (within Oregon). See RPC 8.6.
6–28
CAO PROCESS
CONTACT

Telephone Written
Database Entry
Case Number Assigned
Assist / Info Provided CAO Attorney Assigned

Resolution / Closure
Type of Inquiry Determined
CONTACT INQUIRY INVESTIGATION
Request Info DSM / Close Request Atty Response

Assist / Info Request Info
Provided
Info Recd No Resp / Close Invest. Complete
Info Recd No Resp / Close
DSM / Close Appeal Ref DCO DSM / Close

DSM / Close Atty Named See INVESTIGATION
Appeal GC DSM or Appeal
CLIENT ASSISTANCE OFFICE FLOWCHART
See INQUIRY See INVESTIGATION

Ref DCO GC DSM or
GC DSM or
Ref DCO Ref DCO

6–29

OChapter
REGON STATE BAR DISCIPLINARY PROCESS
6—The Discipline Process: How It Works and How to Avoid It
DISCIPLINE PROCESS FLOWCHART
Inquiries/Complaints
Appeal OSB Client

to OSB Resolved by Client
Dismissal Assistance
General Assistance Office
Office
Counsel
Local Professional
OSB Responsibility
Dismissal Disciplinary Committee
Counsel Investigation
If Review Requested
by Complainant
State Professional
Responsibility
Board
Failed
Diversion
Letter of
Dismissal Diversion Prosecute
If Rejected Admonition
by Lawyer
If Lawyer Disciplinary
If SPRB
or SPRB Guilty Board Not Guilty Appeals
Appeals Trial Panel
Oregon
Supreme Court
Practicing Law in Oregon Appendix

6–31 A

Practicing Law in Oregon

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Practicing Law in Oregon

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Practicing Law in Oregon

***PLEASE NOTE: State and federal practice

Friday, June 21, 2013

Oregon State Bar Center

4.5 General CLE or Practical Skills credits

OREGON STATE BAR

Practicing Law in Oregon ii

2. Oregon Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–i

3. Deposition Techniques and Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–i

4. Local Practice in the District of Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–i

5. Oregon’s Judicial Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–i

6. The Discipline Process: How It Works and How to Avoid It . . . . . . . . . . . . . . . . . . 6–i

Practicing Law in Oregon iii

9:45 Oregon Discovery—Rules and Conventions

10:45 Deposition Techniques and Strategies

2:30 The Discipline Process: How It Works and How to Avoid It

Practicing Law in Oregon vi

Practicing Law in Oregon viii

Practicing Law in Oregon 1–ii

“I have been a stranger in a strange land.” —Moses, Bible, Exodus, 2:22

Practicing Law in Oregon 1–16

Practicing Law in Oregon 1–17

Practicing Law in Oregon 1–18

Practicing Law in Oregon 2–ii

D. Planning and Balancing

III. DISCOVERY OF NONPARTIES

C. Time Limits on the Conduct of Discovery

Practicing Law in Oregon 2–6

Federal Other State

Practicing Law in Oregon 2–7

1. Both the federal and state rules

2. For first state court action, take

Practicing Law in Oregon 2–8

3. A joint discovery plan must at

4. For federal court “initial

Practicing Law in Oregon 2–9

5. Serve, but do not file, discovery

6. Service is effective when you

Practicing Law in Oregon 2–10

7. For federal court, service is

8. Exception to federal court

Practicing Law in Oregon 2–11

9. Exception to federal court

10. For production by a party –

Practicing Law in Oregon 2–12

11. For production by a party –

12. For production by non-party –

Practicing Law in Oregon 2–13

13. For depositions – Confer in

14. For both courts – You must

Practicing Law in Oregon 2–14

15. For both courts – If you have court

16. If the receiving party requests

Practicing Law in Oregon 2–15

17. If the producing party wants a

18. Be sure, in both settings, to

Practicing Law in Oregon 2–16

19. Note that both courts have

Leslie S. Johnson Charles J. (Chip) Paternoster

WELCOME TO PRACTICE IN OREGON!

Practicing Law in Oregon 2–17

Practicing Law in Oregon 2–18

Practicing Law in Oregon 3–ii

I. PROTECTING THE WITNESS DURING DEPOSITION